The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter. (b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence. (c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 3 contracts
Sources: Merger Agreement (Policy Management Systems Corp), Merger Agreement (Computer Sciences Corp), Merger Agreement (Computer Sciences Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article IX hereof and none of the conditions events set forth in Annex I heretoclause (iii) of the Tender Offer Conditions shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, (but in no event later than one week ten (10) Business Days) after the date hereofof this Agreement, Acquisition shall (and Parent shall cause Acquisition to) Purchaser to commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934 (the "Exchange Act")), an offer () the "Offer") for all Offer at the Offer Price. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Tender Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions Conditions set forth in Annex I hereto. Acquisition expressly reserves (including the right Minimum Condition), Purchaser shall, and Parent shall cause Purchaser to, promptly after the Expiration Date, accept for payment and pay for, after giving effect to increase any withholding tax, all such shares of Seller Common Stock validly tendered pursuant to the Offer Price or to make any other changes in and not withdrawn.
(b) Upon the terms and subject to the conditions set forth in this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement.
(c) The initial expiration date of the Offer shall be on the 20th Business Day after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the Exchange Act) (the latest time and date as the Offer, as it may be extended pursuant to this Section 1.1(c), may expire shall be referred to as the “Expiration Date”). If on or prior to any then-scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and all other conditions and requirements set forth in Annex I) shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for periods of up to 10 Business Days each until the earlier of (x) the date on which the Minimum Condition has been met and all of the conditions and requirements set forth in Annex I are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Section 9.1; provided, however, that (i) Purchaser shall not be required to extend the Minimum Condition may be amended Offer beyond the Outside Date. Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or waived only with modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company and Seller, Purchaser shall not:
(iii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes conditions decrease the Offer Price or decrease the number of shares of Seller Common Stock sought pursuant to the Offer;
(ii) otherwise extend the Expiration Date of the Offer except (A) as required by applicable law (including for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the “SEC”) or the staff thereof), or (B) in connection with an increase in the consideration to be paid pursuant to the Offer in addition so as to those comply with applicable rules and regulations of the SEC;
(iii) waive or amend the Minimum Condition;
(iv) impose any condition to the Offer not set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.; or
(bv) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date amend any term of the Offer in one or more periods any manner materially adverse to holders of not more than ten business days each shares of Seller Common Stock.
(but in no event later than December 31, 2000), if (id) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Purchaser may, without the consent of Seller, elect to provide a subsequent offering period for the CompanyOffer in accordance with Rule 14d-11 of the Exchange Act following its acceptance for payment of shares of Seller Common Stock in the Offer.
(e) On the date of commencement of the Offer, Parent and Purchaser shall (i) extend the Offer for any period required by any rule file or regulation of the Securities and Exchange Commission (the "SEC") applicable cause to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file filed with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO Offer which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase (or portions thereof) purchase and forms of the related letter of transmittal transmittal, summary advertisement and summary advertisement. Parent other ancillary documents and Acquisition agree that they shall cause instruments required thereby pursuant to which the Schedule TOOffer will be made (collectively with any supplements , amendments and exhibits thereto, and all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "“Offer Documents"”), and (ii) to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in cause the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case the Seller Stockholders as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company Seller and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the their filing thereof with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by Seller or its counsel. Parent and Acquisition Purchaser agree to provide in writing the Company and its counsel Seller with (i) any comments Parentor other communications, Acquisition whether written or their counsel oral, that may receive be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and prior to responding thereto, and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given). If at any time prior to the Effective Time, any information relating to the Offer, the Merger, Seller, Parent, Purchaser or any of their respective Affiliates, should be discovered by Seller or Parent which should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such commentsinformation shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be filed with the SEC and disseminated to the Seller Stockholders, as and to the extent required by applicable Law or any applicable rules or regulations of any stock exchange. Seller shall furnish to Parent and Purchaser all information concerning Seller required by the Exchange Act to be set forth in the Offer Documents.
(f) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to pay for any shares of Seller Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer and shall cause Purchaser to fulfill its obligations under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Kenexa Corp), Merger Agreement (Kenexa Corp), Merger Agreement (Kenexa Corp)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred that would result in a failure to below been commenced, would give rise to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as reasonably practicable after following the public announcement of the terms of this Agreementdate hereof, but in no event later than one week five business days after the date hereofinitial public announcement of the Offer, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an ) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") for to purchase all of the issued and outstanding shares of common stock, par value $.01 0.005 per share, of the Company (individually a "Share" and collectively, the "Shares" or ") Common Stock"), at a price for each Share of not less than $16.0010.50 per Share, net to the seller in cash (cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offer Price"). Offeror." The obligation of Acquisition Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares on a fully- diluted basiswhich, together with the any Shares then owned by Parent and/or Acquisitionor Sub, represents at least ninety (including for purposes 90%) percent of such calculation all the Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iiiii) the other conditions set forth in Annex I hereto. Acquisition Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer Price or and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases decrease the price per Share or the number of Shares sought payable in the Offer, imposes (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex II hereto, extends (iv) change the expiration date of conditions to the Offer beyond in any material respect adverse to the initial expiration date of the Offer Company, (v) except as provided in the next sentence, extend the Offer, (b), belowvi) change the form of consideration payable in the Offer or makes (vii) amend any other change which is term of the Offer in a manner adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and (ii) if more than 80% but less than 90% of the outstanding this Agreement, Offeror shall accept for payment , and pay for, all Shares shall have been validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the scheduled Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or extended expiration datecause to be taken, extend all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceOffer.
(cb) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition Offeror shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") 14D-1 with respect to the Offer. The Schedule TO shall Offer which will contain as an exhibit or incorporate by reference the Offer offer to Purchase (or portions thereof) purchase and forms form of the related letter of transmittal and summary advertisement. Parent advertisement (together with any supplements or amendments thereto and Acquisition agree that they shall cause the Schedule TOincluding exhibits thereto, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to ). The Offer Documents will comply in all material respects with the Exchange Act applicable federal securities laws and the rules and regulations thereunder and any other Applicable Lawsapplicable laws. Each of Parent, Acquisition Offeror and the Company agrees each agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition further agree to . Offeror will take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws and any other applicable laws. The Company and its counsel shall be given reasonable an opportunity to review and comment on the Offer Documents and any amendments thereto prior to the filing thereof with the SEC; provided that Offeror will attempt to give the Company and its counsel as much time prior to filing to so review and comment as Offeror believes is reasonably practicable under the circumstances. Parent and Acquisition agree to Offeror will provide in writing the Company and its counsel with any comments Parent, Acquisition or their Offeror and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. In the event that the Offer is terminated or withdrawn by Offeror, Parent and Sub shall cause all tendered Shares to be returned to the registered holders of such commentsthe Shares represented by the certificate or certificates surrendered to the Exchange Agent (as defined in Section 3.3 of this Agreement).
Appears in 3 contracts
Sources: Merger Agreement (Bertuccis Inc), Merger Agreement (Ne Restaurant Co Inc), Merger Agreement (Bertuccis of White Marsh Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article VII hereof and none of the conditions events set forth in Annex I heretoII hereto (the "Tender Offer Conditions") shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the fifth business day from the date hereofof this Agreement, Acquisition shall (and Parent Crane shall cause Acquisition to) the Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")), ) an offer (the "Offer") for to purchase all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basisCommon Stock, together with the Shares then owned by Parent and/or Acquisition, associated Rights (including for purposes all references herein to shares of such calculation all Shares issuable upon exercise of all vested and unvested Company Common Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date context of the Offer beyond the initial expiration date of the Offer (except as provided in (b), belowbeing deemed to include such Rights) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of CompanyPer Share Price, Acquisition shall, after affording the Company a reasonable opportunity to review and Parent shall cause Acquisition tocomment thereon, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance file all necessary documents with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to in connection with the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") and shall consummate the Offer, subject to comply the terms and conditions thereof. The obligation of the Purchaser to accept for payment or pay for any shares of Company Common Stock tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in all material respects with Annex II hereto.
(b) Without the prior written consent of the Company, the Purchaser shall not decrease the Offer price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of shares of Company Common Stock. The Offer shall remain open until the date that is 20 business days (as such term is defined in Rule 14d-1(c)(6) under the Exchange Act and Act) after the rules and regulations thereunder and other Applicable Laws. Each commencement of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to (the extent that such information "Expiration Date"), unless the Purchaser shall have become false or misleading in any material respectextended the period of time for which the Offer is open pursuant to, and Parent and Acquisition further agree to take all steps necessary to cause in accordance with, the Schedule TO two succeeding sentences or as so corrected to may be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawslaw, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, as so extended, may expire. The Company and its counsel shall be given reasonable opportunity to review and comment on If at any Expiration Date, any of the Tender Offer Conditions are not satisfied or waived by the Purchaser, the Purchaser may extend the Offer Documents prior from time to time. Subject to the filing thereof with terms of the SEC. Parent Offer and Acquisition agree to provide in writing this Agreement and the Company satisfaction of all the Tender Offer Conditions as of any Expiration Date, the Purchaser will accept for payment and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect pay for all shares validly tendered and not withdrawn pursuant to the Offer Documents promptly as soon as practicable after receipt such Expiration Date of the Offer consistent with applicable law, provided that, if all of the Tender Offer Conditions are satisfied and more than 65% but less than 80% of the outstanding shares of Company Common Stock on a fully diluted basis (including shares of Company Common Stock issuable upon exercise of outstanding options to acquire shares of Company Common Stock) have been validly tendered and not withdrawn in the Offer, the Purchaser shall have the right, in its sole discretion, to extend the Offer from time to time for up to a maximum of 10 additional business days in the aggregate for all such commentsextensions provided the Purchaser agrees to waive the conditions set forth in paragraphs (c), (f) and (g) of Annex II.
Appears in 3 contracts
Sources: Merger Agreement (Liberty Technologies Inc), Merger Agreement (Liberty Technologies Inc), Merger Agreement (Crane Co /De/)
The Offer. (a) Provided that nothing shall have occurred that, had Subject to the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms provisions of this Agreement, but Agreement and provided that this Agreement shall not have been terminated in no event later than one week after the date accordance with Article 10 ---------- hereof, Acquisition on or before February 1, 2001 Merger Sub shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder), an offer (the "Offer") for ------------ Offer to purchase all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Common Stock at a price for each Share of $16.002.15 per share of Common Stock, net to the seller of such shares in cash cash, without interest (such price or any higher price as may be paid pursuant to the Offer, the "Offer PriceConsideration"). Notwithstanding the foregoing, if between the ------------------- date of this Agreement and the closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Acquisition Purchaser and Merger Sub to commence the Offer and accept for payment payment, and pay for, any shares of Common Stock tendered pursuant to pay for any Shares tendered the Offer shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I Exhibit A hereto, which is incorporated herein by reference. Acquisition expressly reserves Subject to --------- the right to increase provisions of this Agreement, the Offer Price shall expire no later than April 2, 2001 (the "Initial Offer Expiration Date"), unless this Agreement is terminated ----------------------------- in accordance with Article 10, in which case the Offer (whether or to make any other changes not ---------- previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) Purchaser and conditions Merger Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer and to waive any condition of the Offer; provided, howeverexcept that, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the Minimum Condition (as defined in Exhibit A), (ii) no reduce the number of shares of --------- Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes (vi) amend or modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to the holders of Common Stock or (vii) --------- impose additional conditions to the Offer other than such conditions required by applicable law. So long as this Agreement is in addition effect and the conditions to those the Offer set forth on Exhibit A have not been satisfied or waived, Merger Sub may, --------- without the consent of the Company, extend the expiration date of the Offer for one or more periods of up to ten additional Business Days each (but in Annex I, extends no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the initial expiration eightieth Business Day after the date of the Offer (except is commenced). So long as provided this Agreement is in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law effect and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offerand such conditions shall not apply to any extension pursuant to this sentence, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Merger Sub may, without the consent of the Company, extend the Offer in accordance with Rule 14d-11 under the Exchange Act, if (i) the number of shares of Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the issued and outstanding shares of the Common Stock and (ii) Merger Sub shall accept and promptly pay for all shares of Common Stock validly tendered and not withdrawn; provided, however, that no such extension shall exceed, in the aggregate, twenty -------- ------- Business Days. Notwithstanding the foregoing, Merger Sub may without the consent of the Company, extend the Offer (i) for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (ii) if for one or --- more than 80% but less than 90% periods of up to ten additional Business Days due to the failure to satisfy the condition to the Offer relating to the expiration or termination of the outstanding Shares waiting period under the HSR Act (as defined below). It is agreed that the conditions set forth in Exhibit A are for the sole benefit of Merger Sub and --------- Purchaser and may be asserted by Merger Sub or Purchaser, or may be waived in whole or in part by Merger Sub or Purchaser, in their sole discretion. The failure by Merger Sub or Purchaser at any time to exercise any of the foregoing rights shall have been not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall accept for payment and pay for, in accordance with the terms of the Offer, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the scheduled or extended expiration dateOffer (subject to the provisions of Rule 14d-11 under the Exchange Act, extend to the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceextent applicable.)
(c) As soon as practicable Purchaser shall provide or cause to be provided to Merger Sub on a timely basis the date funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer is commencedand shall be liable on a direct and primary basis for the performance by Merger Sub or the Surviving Corporation (as defined in Section 2.1), Parent and Acquisition shall file with as the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretocase may be, and including all exhibits thereto, the "Schedule TO") of its ----------- obligations under this Agreement with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference payment of the Offer to Purchase Consideration, the Warrant Consideration (or portions thereofas defined in Section 5.2(d)) and forms the ------------- Merger Consideration (as defined in Section 5.2(b)). -------------
(d) Merger Sub may, at any time, transfer or assign to one or more corporations directly or indirectly wholly-owned by Purchaser the right to purchase all or any portion of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and shares tendered pursuant to the extent Offer, provided that any such information transfer or assignment shall have become false or misleading in any material respect, not prejudice the rights of tendering stockholders to receive payment for shares of Common Stock properly tendered and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsaccepted for payment.
Appears in 3 contracts
Sources: Merger Agreement (Telocity Delaware Inc), Agreement and Plan of Merger (Telocity Delaware Inc), Merger Agreement (Hughes Electronics Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below --------- been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.01 hereof and none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be existing, Parent shall commence the Offer as promptly as reasonably practicable after the public announcement of the terms of this Agreementdate hereof, but in no event later than one week after the date hereofSeptember 12, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")1995. The obligation of Acquisition Parent to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds 2,986,004 Shares (or such greater number of Shares as equals 75% of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested outstanding) shall have been validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Time, but excluding any Shares held by expiration of the Company or any of its subsidiaries) be validly tendered Offer (the "Minimum Tender Condition"), ) and (ii) shall also be subject to the satisfaction of the other conditions set forth in Annex I A hereto. Acquisition Subject to the terms and conditions of the Offer (including the Minimum Tender Condition), Parent shall pay for Shares which have been validly tendered and not withdrawn pursuant to the Offer as promptly as reasonably practicable after expiration of the Offer. Parent expressly reserves the right to increase the price per Share payable in the Offer Price or to make any other changes in the terms and conditions of the Offer; providedprovided that, howeverunless approved by the Board in writing, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may will be made that decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, adds additional conditions to be paidthe Offer, decreases the price per Share or the number of Shares sought being tendered for in the Offer, imposes or makes any change in the terms and conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond which is inconsistent with the initial expiration date third sentence of the Offer (except as provided in (b), belowthis Section 1.01(a) or makes any other change which is otherwise materially adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it It is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of agreed that the conditions set forth in Annex I A hereto are for the benefit of Parent and may be asserted by Parent or, subject to the preceding sentence, may be waived by Parent, in whole or in part at any time and from time to time, in its sole discretion. The Per Share Amount, subject to applicable withholding taxes, shall not have been satisfied or waived at be paid net to the scheduled or extended expiration seller in cash, upon the terms and subject to the conditions of the Offer.
(b) As soon as reasonably practicable on the date of commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, Parent and (iii) Company is in material compliance Acquisition shall file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC")
(i) applicable a Tender Offer Statement on Schedule 14D-1 (together with any amendments or supplements thereto, the "Schedule 14D-1") with respect to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration daterequired, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause a Rule 13E-3 Transaction Statement (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO13E-3") with respect to the execution and delivery of the Stockholders Option Agreement and the Offer. The Schedule TO 14D-1 shall contain as an exhibit or shall incorporate by reference the Offer an offer to Purchase (or portions thereof) purchase and forms a form of the related letter of transmittal and any related summary advertisement. Parent advertisement (together with all supplements or amendments thereto and Acquisition agree that they shall cause the Schedule TO14D-1, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to ). The Offer Documents and Schedule 13E-3 will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Acquisition with respect to information supplied by the Company for inclusion in the Offer Documents or Schedule 13E-3. Each of Parent, Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents and Schedule 13E-3 if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition each further agree agrees to take all steps necessary to cause the Offer Documents and Schedule TO 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with in writing any comments Parent, Acquisition or their counsel may receive from the SEC or its staff Staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) The Company shall prepare and file with the SEC, subject to the prior approval of Acquisition (which approval shall not be unreasonably withheld), if necessary, as soon as practicable after the expiration of the Offer, a proxy or information statement (the "Proxy Statement") and such other documents relating to the Merger as required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder, and the Company shall prepare or shall assist Parent and Acquisition in preparing, as the case may be, any other filings required under the Exchange Act, the Securities Act of 1933, as amended (the "Securities Act"), or any other federal or state securities laws relating to the Offer, the Merger and the transactions contemplated herein (the "Other Filings"). The Company shall obtain and furnish the information required to be included in the Proxy Statement and shall, subject to the prior approval of Acquisition (which approval shall not be unreasonably withheld), respond promptly to any comments made by the SEC with respect to the Proxy Statement and cause the Proxy Statement to be mailed to the Company's stockholders at the earliest reasonably practicable date.
Appears in 3 contracts
Sources: Merger Agreement (Marmon Holdings Inc), Merger Agreement (Tie Acquisition Co), Merger Agreement (Pritzker Family Philanthropic Fund)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition A hereto shall have occurred and be continuing (and Parent shall cause Acquisition to) not have been waived by Purchaser or Merger Sub), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days from the date of this Agreement, and the Offer shall remain open at least twenty (20) business days (as defined in Rule 14d-1(g)(3) of the Exchange Act) from commencement of the Offer (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"“Initial Expiration Date”). The obligation of Acquisition Merger Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) shall be subject only to the satisfaction or waiver by Purchaser or Merger Sub of the following conditions: (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested there being validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Timeexpiration of the Offer that number of shares of Common Stock that represents a majority of all outstanding shares of Common Stock that are not Beneficially Owned by Purchaser, but excluding any Shares held by the Company Merger Sub or any of its subsidiaries) be validly tendered Purchaser Affiliate (the "“Minimum Condition"”), ; and (ii) the other conditions set forth in Annex I A hereto. Acquisition For purposes of this Agreement, the term “Purchaser Affiliate” shall mean any person or entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with Purchaser or its officers or directors and the term “Beneficially Owned or “Beneficially Own” shall include but is not limited to shares of Common Stock that any person or entity, directly or indirectly, through any written or oral agreement, arrangement, relationship, understanding or otherwise with Purchaser or a Purchaser Affiliate, has or shares the power to vote, direct the power to vote, or direct the voting of, or has or shares the power to dispose of, or direct the disposition of, and includes, but is not limited to, the currently exercisable right to acquire Common Stock through the exercise of options, warrants, or rights on the conversion of convertible securities into shares of Common Stock; provided that the term Beneficially Owned for purposes of this Section 1.01(a) shall not include shares of Common Stock that are subject to the rights of the Purchaser and Merger Sub pursuant to the Shareholders Agreement or the Stock Option Agreement. Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions, to increase the Offer Price or and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) Merger Sub shall not, and Purchaser shall cause Merger Sub not to, decrease the Offer Price, change the form of consideration payable in the Offer, decrease the number of Shares sought in the offer, impose additional conditions to the Offer, extend the Offer beyond the Initial Expiration Date except as set forth below, purchase any Shares pursuant to the Offer or otherwise unless the shares purchased equal or exceed that number of shares of Common Stock that satisfy the Minimum Condition may be amended or waived only with amend any other condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company and (ii) no change may be made that changes the form of consideration such consent to be paid, decreases authorized by the price per Share Company Board of Directors or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (ba duly authorized committee thereof), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Merger Sub may, without the consent of the Company, prior to the termination of this Agreement (i) if, at any scheduled expiration of the Offer any of the conditions to Merger Sub’s obligation to accept Shares for payment shall not be satisfied or waived (including without limitation the Minimum Condition), extend the Offer beyond the then applicable expiration date thereof for a time period reasonably necessary to permit such condition to be satisfied, or (ii) extend the Offer for any period required by any rule rule, regulation or regulation interpretation of the United States Securities and Exchange Commission (“SEC”), or the "SEC") staff thereof, applicable to the Offer or (iii) if, at any scheduled expiration of the Offer, the number of shares of Common Stock that shall have been validly tendered and (ii) if more than 80% not withdrawn pursuant to the Offer satisfies the Minimum Condition but represents less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as shares of the scheduled or extended expiration dateCommon Stock outstanding, extend the Offer (one or more times) for an aggregate additional period of not more than five 20 business days beyond days. Merger Sub may also, without the latest expiration date that would otherwise consent of the Company but only after the Minimum Condition is satisfied, extend the Offer in accordance with Rule 14d-11 under the Exchange Act. In addition, the Offer Price may be permitted under clause (i) increased and the Offer may be extended to the extent required by law in connection with such increase, without the consent of this sentencethe Company.
(cb) As soon promptly as practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference an offer to purchase (the “Offer to Purchase (or portions thereofPurchase”) and forms of the related letter of transmittal and summary advertisementall other ancillary Offer documents (collectively, together with all amendments and supplements thereto, the “Offer Documents”). Parent Purchaser and Acquisition agree that they Merger Sub shall cause the Schedule TOOffer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws. Purchaser and Merger Sub, on the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to Merger Sub will cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents prior to the filing thereof Schedule TO before it is filed with the SEC. Parent In addition, Purchaser and Acquisition Merger Sub agree to provide in writing the Company and its counsel with any comments Parentcomments, Acquisition whether written or oral, that Purchaser or Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to consult with the Company and its counsel prior to responding to any such comments.
(c) Purchaser and Merger Sub will file with the Commissioner of Commerce of the State of Minnesota and deliver to the Company any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and will disseminate to the shareholders of the Company the information specified in Section 80B.03 of the Minnesota Statutes.
Appears in 3 contracts
Sources: Merger Agreement (Sl Industries Inc), Merger Agreement (Sl Industries Inc), Merger Agreement (Ault Inc)
The Offer. (a) Provided that nothing As promptly as practicable following the --------- execution hereof, the Purchaser shall have occurred that, had the Offer referred to below been commenced, would give rise to make a right to terminate the Offer public announcement pursuant to any Rule 14d-2(e) under the Securities Exchange Act of the conditions set forth in Annex I hereto1934, as amended (the "Exchange Act"), and, promptly as reasonably practicable after thereafter, the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent commence or shall cause Acquisition to) a wholly-owned subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), ) an offer (the "Offer") for to purchase all of the issued and outstanding shares of common stock, par value $.01 0.01 Netherlands Guilders per share, of the Company (individually a "Share" and collectively, referred to herein as either the "Shares" or "Company Common Stock") at a price for each Share of (i) $16.0030.00 per Share, net of fees and commissions, to the seller in cash (the "Offer Price"), subject to there being, at the expiration of the Offer, validly tendered and not withdrawn that number of Shares which represent at least ninety percent (90%) of the capital stock entitled to vote and then outstanding (the "Minimum Condition") and to the other conditions set forth in Section 6.1 hereof. The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Acquisition the conditions of the Offer, accept for payment and pay for Shares tendered as soon as practicable after it is permitted to do so under the Exchange Act (the "Closing Date"). The obligations of the Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested Minimum Condition and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I heretoSection 6.1 hereof. Acquisition expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (iPurchase") containing the Minimum Condition may be amended or waived only with and the prior other conditions set forth in Section 6.1 hereof. Without the written consent of the Company and (iisuch consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof), the Purchaser shall not (i) no decrease the Offer Price or change may be made that changes the form of consideration payable pursuant to be paidthe Offer (other than as set forth below), decreases the price per Share or (ii) decrease the number of Shares sought in or extend the OfferOffer (other than as set forth below), imposes or (iii) impose any additional conditions to or amend any condition of the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is manner adverse to the holders of the Shares. Subject to satisfaction ; provided, however, that if on the scheduled expiration date of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon (as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially may be scheduled to expire 20 business days following the commencement thereof. Ifextended), at a then-scheduled expiration date, the all conditions to the Offer shall not have not been satisfied (other than conditions which are not capable of being satisfied)or waived, Acquisition may extend the Offer may be extended by the Purchaser from time to time to permit the satisfaction of such conditions until December 31, 2000termination of this Agreement, without the consent of the Company, for to permit satisfaction of such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfiedconditions. In addition, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Purchaser may, without the consent of the Company, (i) increase the Offer Price and extend the Offer for any period to the extent required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentencelaw.
(cb) As soon as practicable on the date the Offer is commenced, Parent and Acquisition the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO14D-1") with respect to the Offer. The Schedule TO shall contain which will include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement with respect to the Offer (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "Offer Documents") to ). The Purchaser represents that the Offer Documents will comply in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder thereunder, and all other applicable federal securities laws and, on the date filed with the Commission and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Purchaser with respect to information supplied by the Company for inclusion in the Schedule 14D-1. The Purchaser further agrees to take all steps necessary to cause the Offer Documents to be filed with the Commission and to be disseminated to holders of Shares, in each case as and to the extent required by the Exchange Act and other Applicable Lawsapplicable federal securities laws. Each of ParentThe Purchaser, Acquisition on the one hand, and the Company Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or and misleading in any material respect, and Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC Commission and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by the Exchange Act or other applicable federal securities laws. The Company and its counsel shall be given reasonable the opportunity to review and comment on the Offer Documents prior to the filing thereof before they are filed with the SECCommission. Parent and Acquisition agree In addition, the Purchaser agrees to provide in writing the Company and its counsel with in writing any comments Parent, Acquisition the Purchaser or their its counsel may receive from time to time from the SEC Commission or its staff with respect to the Offer Documents Schedule 14D-l promptly after receipt of such comments.
Appears in 3 contracts
Sources: Acquisition Agreement (Renaissance Hotel Group N V), Acquisition Agreement (Marriott International Inc), Acquisition Agreement (Marriott International Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.1 and none of the events or conditions set forth in Annex I heretoArticle 6 shall have occurred and be existing (unless waived as provided in Article 6), as promptly as reasonably practicable after the public announcement of the terms of this Agreement, date hereof (but in no event later than one week the twentieth business day after the date hereofpublic announcement of this Agreement), Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an offer the Offer. The Offer will be made pursuant to the Offer Documents (as defined below) containing the "Offer") terms and conditions set forth in this Agreement. Acquisition shall accept for payment, purchase and pay for all Shares, Convertible Preferred Stock and Warrants which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net Offer that all conditions to the seller Offer set forth in cash (the "Offer Price")Article 6 shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment payment, purchase and to pay for any Shares Shares, Convertible Preferred Stock and Warrants tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds a majority of the then issued and outstanding Shares on a fully- diluted basis, together with (giving effect to the Shares then owned by Parent and/or Acquisition, (including for purposes conversion of such calculation all Shares issuable upon outstanding shares of Convertible Preferred Stock and the exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiariesthen outstanding Warrants) be validly tendered (the "Minimum Condition"), ) and (ii) the satisfaction of the other conditions set forth in Annex I heretoArticle 6. Acquisition expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer Price or to make any other changes in the terms and conditions of the Offer; providedOffer (provided that, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of unless previously approved by the Company and (ii) in writing, no change may be made that which decreases the Per Share Amount, which reduces the number of Shares to be purchased in the Offer, which changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date Article 6 or which amends or changes any term or condition of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of Shares). In the Shares. Subject to satisfaction case of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly shares of Convertible Preferred Stock tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and Offer, Acquisition shall pay for the Per Share Amount multiplied by the number of Shares into which such Shares promptly thereafterof Convertible Preferred Stock are then convertible. In the case of Warrants tendered pursuant to the Offer, Acquisition shall purchase such Warrants for a purchase price equal to the difference between the exercise price thereof and the Per Share Amount, multiplied by the number of Shares for which such Warrants are then exercisable. The Per Share Amount shall be paid net to each seller in cash, less any required withholding of taxes, upon the terms and subject to the conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) The Subject to the terms and conditions thereof, the Offer shall initially be scheduled expire at midnight, New York City time, on January 3, 2001 (the "Initial Expiration Date"); provided, however, without the consent of the Board, Parent may cause Acquisition to expire 20 business days following (i) from time to time extend the commencement thereof. IfOffer, if at a then-scheduled expiration datethe Initial Expiration Date of the Offer, any of the conditions to the Offer necessary to consummate the Offer have not been satisfied or waived (other than conditions the Minimum Condition, to which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if this clause (i) any of the does not apply), until such time as such conditions set forth in Annex I shall not have been are satisfied or waived at the scheduled or extended expiration date of the Offer, waived; (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule applicable rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "SEC") applicable or the staff thereof; (iii) if the Minimum Condition is not satisfied, extend the Offer; provided that all extensions pursuant to clauses (i) through (iii) hereof shall not exceed twenty (20) business days, and (iv) if the Minimum Condition is satisfied but the number of Shares validly tendered and not withdrawn represents less than ninety percent (90%) of the then outstanding Shares (giving effect to the conversion of all then outstanding shares of Convertible Preferred Stock and the exercise of all then outstanding Warrants), after consummation of the Offer and payment for all validly tendered shares, commence one subsequent offer for the Shares provided that Acquisition shall meet the requirements of Rule 14d-11 under the Exchange Act in connection with such subsequent offer; provided however, that in no event shall any such subsequent offer period exceed twenty (20) business days. In addition, Parent and Acquisition agree that Acquisition shall from time to time extend the Offer if requested by the Company, if, at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), any of the conditions to the Offer and (ii) if more than 80% but less than 90% of including the outstanding Shares Minimum Condition shall not have been validly tendered pursuant waived or satisfied, until (taking into account all such extensions) February 28, 2001, provided, however, that if the Minimum Condition is the only condition to the Offer as of the scheduled or extended expiration datenot then satisfied, Acquisition shall not be required to extend the Offer for an aggregate period of not more than five twenty (20) business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentencedays.
(c) As soon as practicable on after the date of commencement of the Offer is commencedOffer, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO , which shall contain as include an exhibit or incorporate by reference the Offer offer to Purchase (or portions thereof) purchase and forms of the related letter form of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all letter (together with any amendments thereof or supplements thereto (which together constitute thereto, collectively the "Offer Documents") to ). The Offer Documents shall comply in all material respects with the Exchange Act provisions of applicable federal securities laws and the rules and regulations thereunder and other Applicable Lawsof the SEC. Each of Parent, Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be promptly filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawslaws and the rules and regulations of the SEC. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof their being filed with the SEC. Parent and Acquisition agree to provide in writing to the Company and its counsel with any comments or other communications which Parent, Acquisition or their counsel may receive receives from the staff of the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsthereof.
Appears in 3 contracts
Sources: Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Chesapeake Biological Laboratories Inc)
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 10 and (ii) none of the conditions events set forth in Annex I heretohereto shall have occurred or be existing, Merger Sub shall, as promptly as reasonably practicable (and in any event not later than eight (8) Business Days after the public announcement of the terms date of this Agreement), but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer () the "Offer") Offer for all of the outstanding shares of common stockShares, par value $.01 per share, of at the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). , without interest.
(b) The obligation of Acquisition Parent and Merger Sub to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares on a fully- diluted basis(including the Shares tendered under the Shareholder Agreements) which, together with the Shares then owned by Parent and/or Acquisitionand Merger Sub, represents at least ninety percent (including for purposes 90%) of such calculation all the total number of Fully Diluted Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries(as defined below) be validly tendered (the "“Minimum Condition"”), subject to such waivers of, and changes to, the Minimum Condition as may be required pursuant to Section 1.1(e), and (ii) the other conditions set forth in Annex I heretohereto (collectively, the “Offer Conditions”). Acquisition expressly reserves For purposes of this Agreement, “Fully Diluted Shares” shall mean the right total number of outstanding shares of Company Common Stock, assuming (A) exercise on a cash basis of all outstanding Company Options, whether vested or unvested (excluding for this purpose all Company Options, whether vested or unvested, held by holders who have entered into binding written agreements with the Company agreeing to increase refrain from exercising all or any portion of such Company Options during any period that the Offer Price or to make any other changes in the terms remains pending and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only all Company Options with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the an exercise price per Share or the number of Shares sought in the Offer, imposes conditions to greater than the Offer in addition to those set forth in Annex IPrice, extends the expiration date irrespective of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to whether the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for thereof have entered into such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfiedbinding written agreements), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iiiB) exercise or conversion of all other rights to acquire Company Common Stock or securities convertible into Company Common Stock and issuance of all shares of Company Common Stock that the Company is in material compliance with all of its covenants in this Agreement, subject obligated to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceissue.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 3 contracts
Sources: Merger Agreement (Laserscope), Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any --------- terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I heretoA hereto (other than the events set forth in clause (g) thereof) shall have occurred or be continuing, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, (but in no event later than one week after five business days from the date public announcement of the execution hereof), Acquisition Merger Sub shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange ActEXCHANGE ACT")), ) an offer (the "OfferOFFER") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock, par value $.01 per share, of the Company share (individually each a "ShareSHARE" and and, collectively, the "SharesSHARES" or the ") COMPANY COMMON STOCK"), of the Company, at a price for each Share of $16.0055.50 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, the "Offer PriceOFFER PRICE"). Merger Sub shall, on the terms and subject only to the prior satisfaction or waiver of the conditions of the Offer set forth in Annex A hereto (except that the Minimum Condition (as defined herein) may not be waived by Parent or Merger Sub without the consent of the Company), accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligation obligations of Acquisition Merger Sub to accept for payment and to pay for any and all Shares validly tendered on or before the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn before the condition expiration of the Offer, that number of Shares which, together with any Shares beneficially owned by Parent or Merger Sub, represent at least two-thirds a majority of the Shares outstanding on a fully- fully diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered basis (the "Minimum ConditionMINIMUM CONDITION"), ) and (ii) the other conditions set forth in Annex I heretoA hereto (the "ADDITIONAL CONDITIONS" and, together with the Minimum Condition, the "OFFER CONDITIONS"). Acquisition expressly reserves The Offer shall be made by means of an offer to purchase (the right to increase "OFFER TO PURCHASE") containing the terms set forth in this Agreement and the Offer Conditions. Merger Sub shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or decrease the number of Shares sought in the Offersought, imposes conditions to or amend any other term or condition of the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is manner adverse to the holders of the Shares. Subject to satisfaction of Shares or, except as provided in the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition tonext two sentences, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any without the prior written consent of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Company. Notwithstanding the foregoing, Acquisition Merger Sub may, without the consent of the Company, (i) extend the Offer on one or more occasions for an aggregate period of not more than 20 days, if at the scheduled or extended expiration date of the Offer, the Minimum Condition shall not be satisfied, (ii) extend the Offer from time to time until the earlier to occur of (x) the satisfaction or waiver of all Offer Conditions or (y) August 31, 1998; provided, however, that notwithstanding the foregoing, if all Offer Conditions -------- ------- other than the HSR Condition (as defined in Annex A hereto) have been satisfied or waived, Merger Sub may, if such HSR Condition is reasonably capable of being satisfied, extend the Offer without the consent of the Company until October 31, 1998 (either such date, as applicable, being the "EXTENSION DATE"), if at the scheduled or extended expiration date of the Offer any of the Offer Conditions (other than the Minimum Condition) which are reasonably capable of being satisfied shall not be satisfied or waived, (iii) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iiiv) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer on one or more occasions for an aggregate period of not more than five business days 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares on a fully diluted basis; provided, however, that if the Offer is extended pursuant to this clause (iv) -------- ------- hereof, the conditions to the Offer set forth in clauses (b), (f) or (h) of Annex A hereto shall be deemed satisfied at all times thereafter. Notwithstanding the foregoing, if requested by the Company, Merger Sub shall, and Parent agrees to cause Merger Sub to, extend the Offer from time to time until the earlier to occur of (x) the satisfaction or waiver of all Offer Conditions or (y) the Extension Date if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all Offer Conditions have not been satisfied or waived and all such conditions are reasonably capable of being satisfied. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of the Company.
(cb) As soon as practicable on the date the Offer is commenced, Parent and Acquisition Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO 14D- 1 with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TOSCHEDULE 14D-1") with respect to the Offer). The Schedule TO shall contain 14D-1 will include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "OFFER DOCUMENTS"). The Offer Documents") to Documents will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company or any of its stockholders in writing for inclusion or incorporation by reference in the Offer Documents. Each of ParentParent and Merger Sub further agrees to take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, Acquisition in each case as and to the extent required by applicable federal securities laws. Each of Parent and Merger Sub, on the one hand, and the Company Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition Merger Sub further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof initial Schedule 14D-1 before it is filed with the SEC. In addition, Parent and Acquisition Merger Sub agree to provide in writing the Company and its counsel in writing with any comments or other communications that Parent, Acquisition Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or other communications.
(c) Parent shall provide or cause to be provided to Merger Sub all of the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Upon the consummation of the Offer, Parent agrees to make a loan to the Company, on commercially reasonable terms, in an amount sufficient for the Company to make payments to holders of Company Stock Options as set forth in Section 2.4 hereof, or, if such amount cannot be borrowed by the Company for any reason, to contribute such amount to the Company.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Armstrong World Industries Inc), Merger Agreement (Armstrong World Industries Inc), Merger Agreement (Triangle Pacific Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article 7, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, date hereof (but in no event later than one week after the date hereofJanuary 13, Acquisition 2020), Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act Act, the Offer to purchase for cash any and all (i) Shares (other than Shares to be cancelled in accordance with Section 2.1(b)) at the Share Offer Price and (ii) Preferred Shares at the Preferred Share Offer Price. Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for all Shares and Preferred Shares, as applicable, validly tendered and not properly withdrawn pursuant to the Offer, subject only to: (a) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the Expiration Date that number of 1934 Shares and Preferred Shares that, together with the number of Shares and Preferred Shares (if any) then owned by the Parent, equals at least a majority of the voting power represented by the Shares and Preferred Shares (voting on an as-converted basis in accordance with the Certificate of Designations) that are then issued and outstanding (the "Exchange Act"“Minimum Condition”)); and (b) the satisfaction, an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per shareor waiver by Merger Sub, of the Company other conditions and requirements set forth in Annex I.
(individually a "Share" and collectively, the "Shares"b) at a price for each Share of $16.00, net On or prior to the seller in cash (date that Merger Sub becomes obligated to pay for Shares and Preferred Shares pursuant to the "Offer Price"). The obligation of Acquisition Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all Shares and Preferred Shares, as applicable, that Merger Sub shall become obligated to accept for payment and purchase pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I, Merger Sub shall accept for payment (the time of such acceptance, the “Acceptance Time”) and pay for all Shares and Preferred Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable following the Expiration Date, and, in any Shares event, no more than two (2) Business Days after the Expiration Date. The Offer Price payable in respect of each Share and Preferred Share, as applicable, validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior paid to the Effective Timeseller in cash, but excluding without interest, subject to any Shares held withholding of Taxes required by applicable Law, on the Company or any of its subsidiaries) be validly tendered (terms and subject to the "Minimum Condition"), and (ii) the other conditions set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with applicable Law and this Agreement, including the conditions and requirements set forth in Annex I hereto. Acquisition I. To the extent permitted by applicable Law, Parent and Merger Sub expressly reserves 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 except with the prior written approval of the Company, Merger Sub shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares or Preferred Shares sought to be purchased in the Offer, (iv) amend, modify or waive the Minimum Condition, (v) amend any of the other conditions to the Offer set forth in Annex I in a manner adverse to the holders of Shares or Preferred Shares, (vi) impose conditions to the Offer that are in addition to the conditions to the Offer set forth in Annex I hereto, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the other terms of the Offer in a manner adverse in any material respect to the holders of Shares or Preferred Shares.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on any then scheduled Expiration Date, any of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten (10) Business Days each, or such longer period as may be amended agreed between Merger Sub and the Company, in order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Outside Date. The “Outside Date” shall be June 20, 2020. In addition, Merger Sub shall extend the Offer for any period or waived only with periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as except if this Agreement has been terminated in accordance with Article 7. If this Agreement is reasonably necessary to cause such Offer Conditions to be satisfiedterminated in accordance with Article 7, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, Merger Sub shall (and Parent shall cause Acquisition Merger Sub to, extend the expiration date of the Offer ) promptly (and in one or more periods of not more than ten business days each (but in no any event later than December 31, 2000within 24 hours following such termination), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, irrevocably and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to unconditionally terminate the Offer and shall not acquire any Shares or Preferred Shares pursuant thereto. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, Merger Sub shall (iiand the Parent shall cause Merger Sub to) if more than 80% but less than 90% promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares and Preferred Shares to the outstanding registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any Shares shall have been validly tendered or Preferred Shares pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceOffer.
(cg) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "“Schedule TO") with respect to the Offer”). The Schedule TO shall contain include, as an exhibit or incorporate by reference exhibits, the Offer to Purchase (or portions thereof) and forms Purchase, a form of the related letter of transmittal and a form of summary advertisementadvertisement (collectively, together with any amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Acquisition Merger Sub agree that they shall to cause the Schedule TOOffer Documents to be disseminated to holders of Shares and Preferred Shares, as and to the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with extent required by federal securities Laws, including the Exchange Act Act. Parent and Merger Sub, on the one hand, and the rules Company, on the other hand, agree to promptly notify the other party and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and Acquisition further agree to take all steps necessary Merger Sub agrees to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares and Preferred Shares, in each case case, as and to the extent required by applicable federal securities lawsthe Exchange Act. The Except following a Change of Board Recommendation, the Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree Merger Sub shall give due consideration to any additions, deletions or changes suggested thereto by the Company and its counsel. In addition, except following a Change of Board Recommendation, Parent and Merger Sub shall provide in writing the Company and its counsel with copies of any comments Parentwritten comments, Acquisition and shall provide them an oral summary of any oral comments, that Parent and Merger Sub or their its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such responses and Parent and Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 3 contracts
Sources: Merger Agreement (Care.com Inc), Merger Agreement (Iac/Interactivecorp), Merger Agreement (Iac/Interactivecorp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions terminated in accordance with Section 7.1 and no event set forth in Annex I heretoA hereto shall have occurred and be continuing, as promptly as reasonably practicable (but in no event later than ten (10) business days after the public announcement of the terms of this Agreementexecution hereof), but in no event later than one week after the date hereofPurchaser shall, Acquisition shall (and Parent shall cause Acquisition Purchaser to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), ) ) an offer (the "Offer") to purchase for cash all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Shares at a price for each Share of $16.000.57 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller; provided, -------- however, that Parent may designate another wholly owned, direct or indirect ------- subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(g) under the Exchange Act) in, and at the commencement of, the Offer, in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. The obligation Company shall not tender Shares held by it or by any of Acquisition its subsidiaries pursuant to the Offer. The Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer, accept for payment and to pay for any Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) The Offer shall be subject only made by means of an offer to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered purchase (the "Minimum ConditionOffer to Purchase"), ) containing the terms set forth in this Agreement and (ii) the other conditions set forth in Annex I heretoA hereto and providing for an initial expiration date (the "Expiration Date", which term shall also indicate any later date to which the Offer is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement of the Offer. Acquisition expressly reserves The Purchaser shall not, and Parent shall cause the right to increase Purchaser not to, decrease the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or decrease the number of Shares sought in the Offer, imposes amend the conditions to the Offer set forth in Annex A or impose conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000A, without the prior written consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition The Purchaser may, without the consent of the Company, (iA) extend the Offer for the shortest time periods which it reasonably believes are necessary, in one or more such periods, but in no event more than an additional fifteen (15) business days if Parent and Purchaser are not in material breach of this Agreement and if any condition to the Offer is not satisfied or waived and such condition is reasonably capable of being satisfied and (B) if, on the Expiration Date, the Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty percent (80%) of the outstanding Shares (on a fully diluted basis, as such term is defined in Annex A), (1) extend the Offer for up to ten (10) business days, or (2) provide a subsequent offering period of up to ten (10) business days in accordance with Rule 14d-11 of the Exchange Act, in each case notwithstanding that all the conditions to the Offer were satisfied as of the date such extension or subsequent offering period, as the case may be, is announced. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by any rule or regulation law in connection with such increase, in each case without the consent of the Company.
(c) On the date the Offer is commenced, Parent and Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO") with respect to the Offer). The Schedule TO shall contain as an exhibit or shall incorporate by reference the Offer to Purchase (or portions thereof) and forms a form of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause advertisement (the Schedule TO, the Offer to Purchase and all related letter of transmittal and related summary advertisement, together with any amendments or and supplements thereto (which together constitute thereto, collectively the "Offer Documents") to ). The Offer Documents shall comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of ParentParent and Purchaser shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, Acquisition in each case as and to the extent required by applicable federal securities laws. Each of Parent and Purchaser, on the one hand, and the Company agrees Company, on the other hand, shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or and misleading in any material respect, respect prior to the Expiration Date and Parent and Acquisition the Purchaser further agree to shall take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable an opportunity to review and comment on upon the Offer Documents (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Parent shall, and Acquisition agree to shall cause the Purchaser to, provide in writing the Company and its counsel in writing with any comments that Parent, Acquisition Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentscomments and with copies of any written responses and telephonic notification of any verbal responses by Parent, Purchaser or their counsel.
(d) Parent shall provide or cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Emusic Com Inc), Merger Agreement (Emusic Com Inc), Merger Agreement (Universal Music Group Inc)
The Offer. (a) (i) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and that none of the events set forth in clause (iii) of Exhibit A hereto shall have occurred thator be existing, had the Offer referred to below been commencedPurchaser shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoand Parent shall cause Purchaser to, as promptly as reasonably practicable after (but in no event later than seven (7) business days following the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange ActEXCHANGE ACT")), ) an offer (the "Offer") for to purchase all of the outstanding shares of common stockstock of the Company, without par value $.01 per share(the "SHARES"), of at a price (such price, or any higher price as may be paid in the Company (individually a "Share" and collectivelyOffer, the "SharesOFFER PRICE") at a price for each Share of $16.0022 per Share, net to the seller in cash (such tender offer, as it may be amended and supplemented from time to time as permitted under this Agreement, the "Offer PriceOFFER"). The obligation of Acquisition Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered pursuant thereto shall be subject to only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested terms and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I heretothis Agreement and to those conditions set forth in Exhibit A hereto (the "OFFER CONDITIONS"), any of which (other than the Minimum Tender Condition (as defined in Exhibit A)) may be waived by Purchaser in its sole discretion. Acquisition The initial expiration date of the Offer shall be the twentieth business day following the commencement of the Offer (determined in accordance with Rule 14d-1(e)(6) under the Exchange Act). Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in modify the terms and conditions of the Offer; provided, howeverexcept that, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and Company, Purchaser shall not (iiA) no decrease the Offer Price or change may be made that changes the form of the consideration to be paidpayable in the Offer, decreases the price per Share or (B) decrease the number of Shares sought in pursuant to the Offer, imposes (C) impose additional conditions to the Offer, (D) change the conditions to the Offer or (E) make any other change in addition to those set forth in Annex I, extends the expiration date terms or conditions of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Automatic Data Processing Inc), Agreement and Plan of Merger (Cunningham Graphics International Inc), Merger Agreement (Automatic Data Processing Inc)
The Offer. (aA) Provided An "Offer" for the purposes of this Schedule is an offer to surrender this Lease to the Landlord free from encumbrances (other than any subject to which this Lease was granted) and which:
(i) is unconditional;
(ii) is made irrevocably by the Tenant unless and until rejected or treated as rejected by the Landlord pursuant to paragraph 6.3(C) of this Part I of this Schedule;
(iii) is made in the form set out in Part II of this Schedule;
(iv) is submitted by the Tenant to the Landlord in duplicate, both parts of which are signed by the Tenant;
(v) specifies the Consideration; and
(vi) specifies whether any tenant's fixtures are included and if so itemises them.
(B) Within 25 Business Days of receipt (or deemed receipt) of an Offer, the Landlord shall be entitled (but not obliged) to give notice in writing to the Tenant stating either:
(i) that nothing shall have occurred that, had it does not wish to accept the Offer referred in which event the provisions of paragraph 6.3(C) will apply; or
(ii) that it is minded to below been commencedaccept the Offer at the Consideration, would give rise subject to a right compliance with section 38A(4) of the Landlord and Tenant Act 1954 in which event subject to terminate compliance by the Landlord and the Tenant with paragraph 6.4 the Landlord will accept the Offer in accordance with paragraph 6.5 within 5 (five) Business Days of compliance by the Tenant with the provisions of paragraph 6.4(B).
(C) In the event (1) the Landlord declines to accept the Offer pursuant to any paragraph 6.3(B)(i) or (ii) at the expiry of the conditions 25 Business Days' period specified in paragraph 6.3(B) the Landlord has not notified the Tenant that it is minded (subject to compliance with Section 38A(4) of the Landlord and Tenant Act 1954) to accept a surrender of this Lease and the Offer is thereby treated as rejected by the Landlord or (iii) the Landlord has not within 20 Business Days after notifying the Tenant pursuant to paragraph 6.3(B)(ii) that it is minded to accept the Offer then complied with the provisions of Section 38A(4) of the Landlord and Tenant Act 1954 and paragraph 6.4(A) and following compliance by the Tenant with paragraph 6.4(B) accepted the Offer pursuant to paragraph 6.5, the Tenant may assign or underlet this Lease to a third party for a consideration determined by the Tenant, provided that:
(i) the Tenant must comply with the provisions of paragraph 3.20 (other than paragraph 3.20(E)) of Schedule 3;
(ii) the Tenant shall keep the Landlord fully informed of its negotiations with third parties in respect of any proposed assignment or underletting, including promptly disclosing drafts of any heads of terms (provided that such heads of terms may be redacted by the Tenant if the Tenant reasonably considers it to be necessary, save that the key terms including the consideration must be disclosed to the Landlord);
(iii) the third party transaction must be bona fide and on arm's length terms; and
(i) if the proposed assignment or underlease to a third party would be for less than the Consideration specified in the Offer, the Tenant must first offer to surrender this Lease to the Landlord for the price which has been agreed with the proposed assignee or undertenant (the "Revised Offer") and the Landlord shall be entitled but not obliged within 10 Business Days of receipt (or deemed receipt), time being of the essence, of the Revised Offer to decline the Revised Offer or to notify the Tenant that it is minded to accept the Revised Offer subject to compliance with Section 38A(4) of the Landlord and Tenant Act 1954. In the event that the Landlord fails to respond to the Revised Offer within the said 10 Business Day period the Revised Offer will be treated as having been rejected by the Landlord. The Revised Offer shall comply in all respects with the provisions of paragraph 6.3(A) subject to any necessary revisions to the form set forth out in Annex I hereto, as promptly as reasonably practicable after Part II of this Schedule and the public announcement Consideration for the purposes of the Revised Offer shall be the consideration for which the Tenant is intending to dispose of this Lease whether monetary or not monetary and the terms of this Agreementparagraph (C) apply to the Revised Offer as if it were an Offer, but save in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all respect of the outstanding shares time in which the Landlord must notify the Tenant of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net whether it intends to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafteraccept.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 3 contracts
Sources: Lease (Indivior PLC), Lease Agreement (Indivior PLC), Lease (Indivior PLC)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article IX and none of the events or conditions set forth in Annex I heretoA shall have occurred and be existing, as promptly as reasonably practicable then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the terms execution of this Agreement, but in no event later than one week after the date hereofPurchaser shall, Acquisition shall (and Parent shall cause Acquisition to) subject to the provisions of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an a tender offer (the "Offer") for all of the outstanding shares of common stockCommon Stock, par value $.01 per sharetogether with the associated rights issued pursuant to the Rights Agreement dated as of December 5, of 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.0010.50 per Share, net to the seller in cash (cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the "Offer Price")at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of Acquisition the Purchaser to accept for payment payment, purchase and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the conditions set forth in Annex A hereto, including the condition that at least two-thirds a number of Shares representing not less than a majority of the Shares on a fully- fully diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested basis shall have been validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Time, but excluding any Shares held by expiration date of the Company or any of its subsidiaries) be validly tendered Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and (ii) not withdrawn pursuant to the other conditions set forth in Annex I heretoOffer. Acquisition The Purchaser expressly reserves the right to increase the price per Share payable in the Offer Price or to make any other changes in the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that (i) the Minimum Condition may be amended or waived only with the prior written consent of that, unless previously approved by the Company and (ii) in writing, no change may be made that which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex IA hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance for payment and payment for shares in the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the expiration date period of the Offer beyond 45 days after the initial expiration date of commencement of the Offer, or which otherwise amends the terms of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) including any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date A) in a manner that is materially adverse to holders of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Shares. Notwithstanding the foregoing, Acquisition the Purchaser may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation if, at the scheduled expiration date of the Securities and Exchange Commission (Offer, any of the "SEC") applicable conditions to the Offer and Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate a period of not more than five 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentencesentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth in Annex A are for the sole benefit of the Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of any of its covenants under this Agreement) or may be waived by the Parent or the Purchaser, in whole or in part at any time and from time to time, in its sole discretion. The failure by the Parent or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
(cb) As soon promptly as reasonably practicable on following execution of this Agreement, the date the Offer is commenced, Parent and Acquisition the Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") 14D-1 with respect to the Offer. The Schedule TO , which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase (or portions thereof) purchase and forms of the related letter of transmittal and summary advertisement. Parent advertisement (such Schedule 14D-1 and Acquisition agree that they shall cause the Schedule TO, documents therein pursuant to which the Offer to Purchase and all will be made, together with any supplements or amendments or supplements thereto (which together constitute thereto, the "Offer Documents") ). The Offer Documents shall comply as to comply form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and, on the date filed with the SEC and other Applicable Lawson the date first published, sent or given to the holders of Shares, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by the Parent or the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of the Parent, Acquisition the Purchaser and the Company agrees promptly to correct any information provided supplied by it specifically for use inclusion in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of the Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition the Purchaser agree to provide in writing the Company and its counsel in writing with any comments the Parent, Acquisition the Purchaser or their counsel may receive from the SEC or its staff Staff with respect to the Offer Documents promptly after the receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company.
Appears in 3 contracts
Sources: Merger Agreement (Hanna M a Co/De), Merger Agreement (Cimco Inc /De/), Merger Agreement (Cimco Inc /De/)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be continuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week seven (7) business days after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), ) that at least the number of Shares tendered shall constitute a 50% plus one share of the sum of the number of then outstanding Shares plus all Shares issuable upon the exercise of the Outstanding Options (as of the business day preceding the Initial Expiration Date) and Outstanding Warrants (as of the business day preceding the Initial Expiration Date) shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of each of the other conditions set forth in Annex I A hereto. Acquisition Purchaser expressly reserves the right to waive any such condition set forth in Annex A, to increase the Offer Price or Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that which decreases the Per Share Amount, changes the form of consideration to be paidpayable, decreases reduces the price per Share or the maximum number of Shares sought to be purchased in the Offer, Offer or imposes or modifies (other than to waive) conditions to the Offer in addition to those set forth in Annex I, extends A hereto. Subject to the expiration date terms of the Offer beyond and this Agreement and the initial expiration date satisfaction or waiver of the Offer (except Minimum Condition as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction scheduled expiration date, which shall initially be 20 business days following the commencement of the Offer, and the other conditions contained set forth in Annex IA hereto, Acquisition shall Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for practicable after such Shares promptly thereafter.
expiration date of the Offer (b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration such date, as extended pursuant to this Agreement, the conditions "Share Acceptance Date"). Notwithstanding the foregoing, Purchaser shall be entitled to extend the Offer from time to time without the consent of the Company: (i) until no later than January 11, 2002 if at the initial expiration of the Offer, which will be 12:00 midnight eastern standard time on the twentieth business day following commencement of the Offer, as may be extended (the "Initial Expiration Date"), the Minimum Condition is not satisfied, or (ii) until no later than December 31, 2001, if at the Initial Expiration Date, the Minimum Condition is satisfied, but any other condition to the Offer have is not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may or waived. Purchaser agrees to extend the Offer from time to time until not later than December 31, 20002001, if at the then scheduled expiration date, the Minimum Condition has not been satisfied or waived as permitted by this Agreement. Any extension of the Offer pursuant to this Section 2.01 shall not, without the written consent of the Company, for such amount exceed the number of time as is days that Purchaser reasonably believes will be necessary to cause such Offer Conditions to so that the Minimum Condition will be satisfied. In addition, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Purchaser may, without the consent of the Company, (i) extend any then scheduled expiration date of the Offer for any period required by any rule applicable rules, regulations, interpretations or regulation positions of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (ii) if more than 80% or for any period required by applicable law. If the Initial Expiration Date has occurred, but less fewer than 90% of the outstanding Shares shall have been validly tendered and not withdrawn as of the Initial Expiration Date, Purchaser may provide for a subsequent offering period (as contemplated by Rule 14d-11 under the Securities Act of 1934, as amended (the "Exchange Act")) as long as providing for the subsequent offering period does not require the extension of the initial offer period under applicable rules and regulations of the SEC, which subsequent offering period shall not exceed 20 business days. In addition, the Per Share Amount may be increased and the Offer may be extended to the extent required by law in connection with such increase in each case without the consent of the Company. On or prior to the dates that Purchaser becomes obligated to accept for payment and pay for Shares pursuant to the Offer as Offer, Holdings shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to accept for payment and pay for pursuant to the Offer. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the scheduled Offer. Notwithstanding the foregoing and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or extended expiration datein part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act.
(b) Following the execution of this Agreement, extend the Offer for Company shall use its reasonable best efforts to cause all holders (and such holders' spouses) of options to purchase Shares granted under the Company's 1997 Incentive Stock Option Plan and the Company's Directors Non-Qualified Option Plan , each as amended through the date of this Agreement (the "Company Stock Option Plans"), to execute prior to the Initial Expiration Date an aggregate period Option Relinquishment and Release Agreement (herein so called) in the form attached hereto as Exhibit A. At the Share Acceptance Date, Purchaser shall cause the Paying Agent to pay to such holders who have previously delivered an Option Relinquishment and Release Agreement the cash amount equal to the product of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) the number of this sentenceShares subject to such option (irrespective of whether such option is then exercisable) and (ii) the amount by which the Per Share Amount exceeds the exercise or strike price per Share subject to such option less any required withholding taxes. In the event that an option holder fails to deliver an Option Relinquishment and Release Agreement prior to the Initial Expiration Date, such holder's options (the "Outstanding Options") shall, in accordance with the terms and conditions of the governing Company Stock Option Plan and the holder's stock option agreement(s), be converted without any action on the part of the holder thereof into the right to receive Merger Consideration upon the exercise of such holder's options in accordance with, and within the time period prescribed by, the applicable Company Stock Option Plan and the holder's stock option agreement(s). The Purchaser shall pay, or cause the Paying Agent to pay, to each holder of Outstanding Options, the Merger Consideration, less any required withholding taxes, as promptly as practicable after receiving a valid exercise of such options by the holder thereof. To the extent that options to purchase the Company's common stock are exercised by holders prior to the Effective Time, such holders shall receive certificates evidencing the Shares underlying the options and may surrender such certificates to the Paying Agent at the Effective Time for payment in cash as provided in Article III hereof.
(c) Following the execution of this Agreement, the Company shall send to holders of warrants to purchase Shares written notice of the Offer and Merger and such information required by the terms of such warrant. The Company shall send to all such persons a Warrant Relinquishment and Release Agreement (herein so called) in the form attached hereto as Exhibit B and shall use its reasonable best efforts to cause all holders of warrants (and such holders' spouses) to execute prior to the Initial Expiration Date a Warrant Relinquishment and Release Agreement. At the Share Acceptance Date, Purchaser shall cause the Paying Agent to pay to such holders who have previously delivered a Warrant Relinquishment and Release Agreement the cash amount equal to the product of (i) the number of Shares subject to such warrant and (ii) the amount by which the Per Share Amount exceeds the exercise price per share of Shares subject to such warrant less any required withholding taxes. In the event that a warrant holder fails to deliver a Warrant Relinquishment and Release Agreement prior to the Initial Expiration Date, such holder's warrants (the "Outstanding Warrants") shall, in accordance with the terms and conditions of the Outstanding Warrant be converted without any action on the part of the holder thereof into the right to receive Merger Consideration upon the exercise of such holder's warrants in accordance with the warrant agreement(s). The Purchaser shall pay, or cause the Paying Agent to pay, to each holder of Outstanding Warrants, the Merger Consideration, less any required withholding taxes, as promptly as practicable after receiving a valid exercise of such warrants by the holder thereof. To the extent that warrants to purchase the Shares are exercised by holders prior to the Effective Time, such holders shall receive certificates evidencing the Shares underlying the warrants and may surrender such certificates to the Paying Agent at the Effective Time for payment in cash as provided in Article III hereof.
(d) If the payment equal to the Per Share Amount in cash (the "Merger Consideration") is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(e) As soon promptly as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or shall incorporate by reference an offer to purchase (the "Offer to Purchase (or portions thereofPurchase") and forms of the related letter of transmittal and any related summary advertisement. Parent and Acquisition agree that they shall cause advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments or supplements thereto (which together constitute thereto, being referred to herein collectively as the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws). Each of ParentCRI, Acquisition Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent CRI and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The CRI and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof such documents being filed with the SECSEC or disseminated to holders of Shares. Parent CRI and Acquisition agree to Purchaser shall provide in writing the Company and its counsel with any comments ParentCRI, Acquisition Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of CRI or Purchaser to such comments.
Appears in 3 contracts
Sources: Merger Agreement (Comstock Resources Inc), Merger Agreement (Devx Energy Inc), Merger Agreement (Comstock Resources Inc)
The Offer. (a) Provided that nothing So long as none of the events set forth in clauses (a) through (h) of Annex I hereto shall have occurred thator exist, had the Offer referred to below been commencedPurchaser shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition the Purchaser to) , commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"))) as promptly as practicable after the date hereof, an offer (the "Offer") for all of the outstanding shares of common stockbut in any event not later than May 4, par value $.01 per share, of the Company (individually a "Share" and collectively1998, the "Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to such Shares") at a price for each Share of $16.00, net to the seller in cash cash. The initial expiration date for the Offer shall be the twentieth business day from and after the date the Offer is commenced, including the date of commencement as the first business day in accordance with Rule 14d-2 under the Exchange Act (the "Offer PriceExpiration Date"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except As promptly as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration datepracticable, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent Purchaser shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Purchaser's Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1" and together with all amendments and supplements theretothe documents therein pursuant to which the Offer will be made, and including all exhibits with any supplements or amendments thereto, the "Schedule TOOffer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase") which shall be mailed to the holders of Shares with respect to the Offer. The Schedule TO shall contain as an exhibit obligation of Parent and the Purchaser to accept for payment or incorporate by reference pay for any Shares tendered pursuant to the Offer will be subject only to Purchase there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which represents at least 66-2/3% of the Shares outstanding on a fully diluted basis (or portions thereofwithout giving pro forma effect to the potential issuance of any Shares issuable under the Stock Option Agreement) (the "Minimum Condition") and forms to the satisfaction or waiver of the related letter other conditions set forth in Annex I hereto ("fully diluted basis" means issued and outstanding Shares and Shares subject to issuance under outstanding employee stock options). Without the prior written consent of transmittal the Company, the Purchaser shall not (i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, or (iii) amend any other term of the Offer in any manner adverse to the holders of any Shares; provided, however, that if on the initial scheduled Expiration Date, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act (as hereinafter defined) to have expired or been terminated, the Purchaser shall, and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOPurchaser to, extend the expiration date from time to time until two business days after the expiration of the waiting period under the HSR Act.
(b) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of all the conditions of the Offer set forth in Annex I hereto as of the Expiration Date, the Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer to Purchase and all amendments or supplements thereto as soon as practicable after the Expiration Date.
(which together constitute the "c) The Offer Documents") to Documents will comply in all material respects with the Exchange Act and provisions of applicable federal securities laws and, on the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be date filed with the SEC and on the other Offer Documents as so corrected date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to holders of Sharesmake the statements made therein, in each case as and to light of the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parentcircumstances under which they were made, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.not misleading,
Appears in 3 contracts
Sources: Merger Agreement (Hein Werner Corp), Merger Agreement (Snap on Pace Co), Merger Agreement (Snap on Inc)
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred thatbeen terminated in accordance with Section 8.1, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any (ii) none of the conditions events set forth in Annex I hereto(other than paragraphs (f) and (i)) shall have occurred and be continuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, as promptly as reasonably practicable after the public announcement effectiveness of the terms of this AgreementForm 10, but and in no event later than one week after any event, within five (5) business days thereafter, the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”))) the Offer, an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) there being validly tendered in the condition that at least two-thirds Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares on a fully- diluted basiswhich, together with the Shares then beneficially owned by Parent and/or Acquisitionthe Purchaser, (including for purposes represents at least a majority of such calculation all the Shares issuable upon exercise outstanding on a fully diluted basis and no less than a majority of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or any (if a greater majority) upon the adoption of its subsidiaries) be validly tendered this Agreement (collectively, the "“Minimum Condition"), ”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I hereto. Acquisition expressly reserves I. Subject to the right to increase prior satisfaction or waiver by the Offer Price or to make any other changes in the terms and conditions Purchaser of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with and the prior written consent of the Company other conditions and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those requirements set forth in Annex I, extends the expiration date of Purchaser shall consummate the Offer beyond the initial expiration date of in accordance with its terms and accept for exchange, and exchange the Offer (except as provided in (b)Consideration for, below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it practicable after the Purchaser is legally permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The law; provided, however, that the initial expiration date of the Offer shall initially be scheduled to expire 20 the date that is twenty (20) business days following the commencement thereofof the Offer (the “Initial Expiration Date”). IfThe obligation of the Purchaser to accept for exchange, at a then-scheduled and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration dateof the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not decrease the Offer Consideration, change the form of consideration payable in the Offer or reduce the maximum number of Shares to be purchased in the Offer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), all conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at waived, the scheduled or extended expiration date of Purchaser may, from time to time, in its sole discretion, extend the OfferInitial Expiration Date, for such period as the Purchaser may determine, (iiy) such condition is reasonably capable of being satisfiedthe Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (iiiz) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Purchaser may, without the consent of the Companyin its sole discretion, (i) extend the Offer for any period required by any rule reason on one or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer occasions for an aggregate period of not more than five ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (ix) of this sentencesentence if, on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and extend the Offer to the extent required by applicable law in connection with such increase and (ii) extend the Offer to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the exchange of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Agent, acting on behalf of the Purchaser, to return all tendered Shares to the registered holders thereof.
(b) Notwithstanding anything to the contrary contained in this Article I, no certificates or scrip representing fractional shares of Purchaser Common Stock shall be issued upon the surrender for exchange of the Shares pursuant to the Offer, no dividends or other distributions with respect to the Purchaser Common Stock shall be payable on or with respect to any such fractional share interest and such fractional share interests will not entitle the owner thereof to vote or to any other rights of a shareholder of the Purchaser. In lieu of any such fractional shares, each tendering shareholder who would otherwise be entitled to a fractional share of Purchaser Common Stock (after aggregating all fractional shares of Purchaser Common Stock that otherwise would have been received by such shareholder) shall, upon surrender of his or her Certificate or Certificates, be entitled to receive an amount of cash (without interest) determined by multiplying (i) the closing price of a share of Purchaser Common Stock as reported on the Nasdaq Global Market (the “Nasdaq”) on the Acceptance Date by (ii) the fractional share interest to which such shareholder would otherwise be entitled. The parties acknowledge that payment of the cash consideration in lieu of issuing fractional shares was not separately bargained for consideration, but merely represents a mechanical rounding off for purposes of simplifying the corporate and accounting complexities that would otherwise be caused by the issuance of fractional shares.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition the Purchaser shall (i) file with the SEC Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) and (ii) file with respect the SEC a registration statement on Form S-4 to register, under the Securities Act, the offer and sale of the Purchaser Common Stock pursuant to the OfferOffer and the Merger (together with all amendments, supplements and exhibits thereto, the “Registration Statement”). The Registration Statement shall include a preliminary prospectus (the “Prospectus”) containing the information required under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall contain include the summary term sheet required under Regulation M-A and, as an exhibit or incorporate by reference exhibits, the Offer to Purchase (or portions thereof) Exchange and forms a form of the related letter of transmittal and summary advertisementadvertisement (collectively with the Prospectus, and together with any amendments and supplements thereto and to the Prospectus, the “Offer Documents”). Parent and Acquisition agree that they The Purchaser shall cause the Schedule TO, Offer Documents to be disseminated to the Offer holders of the Shares as and to Purchase and the extent required by applicable federal securities laws. The Company shall provide the Purchaser with all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and information concerning the Company agrees promptly and its directors, officers and affiliates as shall be required to correct any information provided by it for use be included in the Offer Documents if and the Registration Statement. The Company and its counsel shall be given a reasonable opportunity to review the Registration Statement and the Offer Documents before they are filed with the SEC, and the Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that the Purchaser or its counsel may receive from time to time from the SEC or its staff with respect to the Registration Statement or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses, and the Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. No amendment or supplement to the Offer Documents shall be made by the Purchaser without providing the Company and its counsel a reasonable opportunity to review any such amendment or supplement, and the Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(d) The Purchaser shall use its reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof with the SEC and to keep the extent Registration Statement effective as long as is necessary to complete the Offer and the Merger. Notwithstanding any other provision herein to the contrary, no amendment or supplement to the Registration Statement will be made by the Purchaser without the approval of the Company, which will not be unreasonably withheld, conditioned or delayed; provided, that with respect to documents filed by the Purchaser which are incorporated by reference in the Registration Statement, this right of approval shall apply only with respect to information relating to this Agreement, the Transactions or the Company or its business, financial condition or results of operations. The Purchaser shall take any action (other than qualifying to do business in any jurisdiction in which it is now not so qualified) reasonably required to be taken under applicable state securities or Blue Sky laws in connection with the issuance of the Purchaser Common Stock in the Offer and the Merger. The Purchaser will advise the Company, promptly after it receives notice thereof, of the time when the Registration Statement is declared effective, the issuance of any stop order, the suspension of the qualification of the Purchaser Common Stock issuable in connection with the Offer or the Merger for offering or sale in any jurisdiction, or of any request by the SEC for amendment of the Registration Statement. Following the time the Registration Statement is declared effective, the Purchaser shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act.
(e) If, at any time prior to the Effective Time, the Company or the Purchaser discovers any information relating to either party, or any of their respective affiliates, officers or directors, that should be set forth in an amendment or a supplement to any of the Registration Statement, the Offer Documents or the Schedule 14D-9, as the case may be, so that such documents would not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, the party that discovers that information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be promptly filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws.
(f) The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered to the Purchaser pursuant to the Offer. The Company and its counsel shall be given reasonable opportunity hereby consents to review and comment on the inclusion in the Offer Documents prior of the recommendation of the Company Board of Directors referred to in clause (iii) of Section 3.4
(g) Notwithstanding anything herein to the filing thereof with contrary, the SEC. Parent and Acquisition agree to provide in writing Purchaser, the Company or the Exchange Agent may withhold the Offer Consideration as it reasonably deems necessary to satisfy its withholding obligations under applicable law, and its counsel with the withholding of any comments Parent, Acquisition or their counsel may receive from such Offer Consideration for such purpose shall be treated as the SEC or its staff with respect payment thereof to the Offer Documents promptly after receipt Person from whom such amount was withheld for purposes of determining whether such commentsPerson received amounts to which such Person is entitled hereunder.
Appears in 3 contracts
Sources: Merger Agreement (New 360), Merger Agreement (Point 360), Merger Agreement (DG FastChannel, Inc)
The Offer. (a) Provided that nothing no event shall have occurred that, had the Offer referred to below been commenced, that would give rise to a right to terminate this Agreement pursuant to Article 8, Buyer shall commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇) the Offer as promptly as reasonably practicable after the date of this Agreement but in no event later than the tenth (10th) Business Day following the date of this Agreement. The obligations of Buyer to accept for payment, and pay for, any Shares validly tendered and not properly withdrawn pursuant to any the Offer shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex I hereto, (the “Offer Conditions”). The date on which Buyer commences the Offer is referred to as promptly as reasonably practicable after the public announcement “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is not prohibited by applicable Law) of the terms of this AgreementOffer Conditions, but in no event later than one week after the date hereof, Acquisition Buyer shall (and Parent shall cause Acquisition Buyer to), at or as promptly as practicable following the Expiration Time (but in any event within two (2) commence Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and, at or as promptly as practicable following the Acceptance Time (but in any event within the meaning of three (3) Business Days (calculated as set forth in Rule 14d-2 14d-1(g)(3) promulgated under the Securities Exchange Act of 1934 (the "Exchange Act")▇▇▇▇ ▇▇▇) thereafter), an offer pay (by delivery of funds to the "depositary for the Offer") for all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the outstanding shares Acceptance Time (the “Closing”). The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. The Offer Consideration payable in respect of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share pursuant to the first sentence of $16.00this Section 2.01(b) shall be paid, net of any applicable Tax withholding with respect to the Offer Consideration pursuant to Section 2.09, to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested Share in cash, without interest, on the terms and unvested Company Stock Options that vest prior subject to the Effective Time, but excluding any Shares held by the Company or any conditions of its subsidiariesthis Agreement.
(c) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition Buyer expressly reserves the right to increase at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Price or Conditions and to make any other changes change in the terms and of, or conditions of to, the Offer; provided, howeverthat, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company Company, Buyer shall not (and Parent shall cause Buyer not to):
(i) waive or change the Minimum Condition (except to the extent contemplated under paragraph (A) of Annex I);
(ii) no decrease the Offer Consideration;
(iii) change may be made that changes the form of consideration to be paid, decreases paid in the price per Share or Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, imposes conditions to except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(bd) The Offer shall initially be scheduled to expire 20 business days at 9:00 a.m. (New York City time), or at such other time as the Parties may mutually agree, on the date that is the later of (i) twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) following the commencement thereof. If, at a then-scheduled of the Offer and (ii) six (6) Business Days after the date of the EGM (such initial expiration datedate and time of the Offer, the conditions to “Initial Expiration Time”) or, if the Offer have not has been satisfied (other than conditions which are not capable of being satisfiedextended pursuant to and in accordance with Section 2.01(e), Acquisition the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article 8, Buyer may or shall (in which case Parent shall cause Buyer to), as applicable, extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, follows:
(i) Buyer shall (and Parent shall cause Acquisition Buyer to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any the minimum period as required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (SEC, the "SEC") staff thereof or the NYSE applicable to the Offer and Offer;
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is not prohibited under this Agreement and applicable Law), then Buyer shall (and Parent shall cause Buyer to) extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time, the Offer Condition set forth in paragraph (B) or paragraph (C) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer may extend the Offer on such occasion for periods of up to twenty (20) Business Days; provided further, that (x) Buyer shall not be required to extend the Offer to a date later than the End Date (as the End Date may be extended pursuant to Section 8.01(b)(i)) and (y) if the sole then-unsatisfied Offer Condition is the Minimum Condition, Buyer shall not be required to extend the Offer on more than 80% but two (2) occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company); or
(iii) Buyer may extend the Offer to such other date and time as may be mutually agreed by Parent and the Company in writing.
(f) Following the Acceptance Time, Buyer shall (and Parent shall cause Buyer to) (and the Offer Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 promulgated under the 1934 Act of not less than 90% ten (10) Business Days (calculated in accordance with Rule 14d-1(g)(3) promulgated under the 1934 Act). In the event that prior to the expiration of the outstanding Subsequent Offering Period, Buyer or one of its Affiliates has publicly indicated its intention to, subject to the terms of this Agreement, effectuate the Asset Sale, Buyer shall (and Parent shall cause Buyer to) (and the Offer Documents shall so indicate) extend the Subsequent Offering Period for at least five (5) Business Days to permit any remaining Minority Shareholders to tender their Shares in exchange for the Offer Consideration (such extension, the “Minority Exit Offering Period”).
(g) The Offer may not be terminated prior to the Initial Expiration Time or the then-scheduled Expiration Time (as the same may be extended pursuant to Section 2.01(e)) unless this Agreement is validly terminated pursuant to Section 8.01. If this Agreement is validly terminated pursuant to Section 8.01, Buyer shall have been validly (and Parent shall cause Buyer to) promptly (and in any event within twenty-four (24) hours following such valid termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement by Buyer prior to the acceptance for payment and payment for Shares tendered pursuant to the Offer as Offer, Buyer shall (and Parent shall cause Buyer to) promptly return, and shall cause any depositary acting on behalf of Buyer to return, in accordance with applicable Law, all tendered Shares to the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted registered holders thereof. Nothing in this Section 2.01(g) shall affect any termination rights under clause (i) of this sentenceArticle 8.
(ch) As soon as practicable on the date the Offer is commencedCommencement Date, Parent and Acquisition Buyer shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, thereto and including all exhibits thereto, the "“Schedule TO") with respect to the Offer. The Schedule TO ”), which shall contain as an exhibit or incorporate by reference the Offer an offer to Purchase (or portions thereof) purchase and forms of the a related letter of transmittal and summary advertisement. Parent other appropriate ancillary offer documents required to be included therein (such Schedule TO and Acquisition agree that they shall cause the Schedule TO, documents included therein pursuant to which the Offer to Purchase and all will be made, together with any amendments or supplements thereto (which together constitute and including exhibits thereto, the "“Offer Documents"”) and (ii) cause the Offer Documents to comply in be disseminated to holders of Shares to the extent required by applicable United States federal securities Laws and any other applicable Law. The Company shall promptly furnish to Parent and Buyer all material respects with information concerning the Exchange Company required by the 1934 Act and applicable Law, or as reasonably requested by Parent, to be set forth in the rules and regulations thereunder and other Applicable LawsOffer Documents. Each of ParentParent and Buyer, Acquisition on the one hand, and the Company Company, on the other hand, agrees promptly to correct any information provided by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect, and . Parent and Acquisition further agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable United States federal securities lawsLaws and any other applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents prior to the filing thereof each time before any such document is filed with the SEC, and Parent and Buyer shall consider in good faith including in such document (and any amendments thereto) all comments reasonably proposed by the Company and its counsel. Parent and Acquisition agree to Buyer shall provide in writing the Company and its counsel with (A) any comments Parentor other communications, Acquisition whether written or oral, that Parent and Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Buyer to those comments and to provide comments on that response (and Parent and Buyer shall consider in good faith including all comments reasonably proposed by the Company and its counsel), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the SEC or other Governmental Authorities to the extent such commentsparticipation is not prohibited by the SEC or other Governmental Authorities.
Appears in 3 contracts
Sources: Purchase Agreement (Patheon N.V.), Purchase Agreement (Thermo Fisher Scientific Inc.), Purchase Agreement (Patheon N.V.)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as reasonably practicable after the public announcement of the terms of this Agreement, but (and in no any event later than one week within ten (10) Business Days) after the date hereof, Acquisition the Purchaser shall (and Parent shall cause Acquisition the Purchaser to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act")”), an offer the Offer to purchase all the outstanding Common Shares at the Common Offer Price and all the outstanding Preferred Shares at the Preferred Offer Price. The obligation of the Purchaser to commence the Offer shall be subject only to the condition that none of the events set forth in clauses (c)(i) through (c)(iv) of Annex I hereto shall have occurred and be continuing (and not waived by Parent or the Purchaser in their sole discretion), and the obligation of the Purchaser to accept for payment, purchase and pay for Shares validly tendered and not withdrawn pursuant to the Offer shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, together with the number of Shares (if any) then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Common Shares then outstanding (determined on a Fully Diluted Basis) (the "Offer"“Minimum Condition”); and (ii) for all of the outstanding shares of common stocksatisfaction, par value $.01 per shareor waiver by Parent or the Purchaser, of the Company other conditions and requirements set forth in Annex I.
(individually a "Share" b) Subject to the satisfaction of the Minimum Condition and collectivelythe satisfaction, or waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I, the "Shares"Purchaser shall (and Parent shall cause the Purchaser to) at a price accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after Purchaser is legally permitted to do so under applicable Law. For the avoidance of doubt, the Acceptance Time shall not occur (and Purchaser may not accept for payment any Shares tendered pursuant to the Offer) prior to the Initial Expiration Date or if the Minimum Condition is not satisfied. The Common Offer Price and Preferred Offer Price payable in respect of each Common Share of $16.00and Preferred Share, respectively, validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(c) The Offer shall be made by means of an offer to purchase (the "“Offer Price"). The obligation of Acquisition to accept for payment Purchase”) that describes the terms and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds conditions of the Shares on a fully- diluted basisOffer in accordance with this Agreement, together with including the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested Minimum Condition and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions and requirements set forth in Annex I hereto. Acquisition I. Parent and the Purchaser expressly reserves reserve the right to increase the Common Offer Price and the Preferred Offer Price in proportion to each other or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) decrease the Common Offer Price or the Preferred Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify any term, condition or requirement of the Offer in a manner adverse to the holders of Shares, (vi) add any additional condition to the Offer or (vii) extend or change the Expiration Date in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date on which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition may be amended and the other conditions and requirements set forth in Annex I) have not been satisfied, or waived only by Parent or the Purchaser, the Purchaser may, and, if requested by the Company, shall (and Parent shall cause the Purchaser to) extend the Offer for successive periods of up to ten (10) Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that neither Parent nor the Purchaser shall be required to extend the Offer (i) beyond April 22, 2011 (the “Outside Date”), (ii) if either of the conditions set forth in clause (c)(iii) or (c)(iv) of Annex I are not at such time satisfied in accordance with this Agreement (other than any such conditions that are not so satisfied or waived under circumstances in which the breach or breaches preventing such conditions from being satisfied may, by their nature, be cured by the Company through the exercise of its reasonable efforts for a period not greater than forty-five (45) days, in which case the Company may (if all other conditions set forth in clauses (c)(iii) and (c)(iv) of Annex I are satisfied) request one or more extensions of the Offer pursuant to this sentence for up to forty-five (45) days in the aggregate) or (iii) after the Company delivers or is required to deliver to Parent a notice with respect to an Acquisition Proposal that has been received by the Company in accordance with Section 5.4(c), except to the extent that (A) prior to the expiration of the Offer the Acquisition Proposal giving rise to such notice has been withdrawn or the Company Board has rejected the Acquisition Proposal giving rise to such notice and, in each case, the Company Board has reconfirmed the Company Board Recommendation and the withdrawal or rejection of such Acquisition Proposal, and the reconfirmation of the Company Board Recommendation has been publicly announced by the Company or (B) less than three (3) Business Days have elapsed since the Company has received such Acquisition Proposal and there has not been a Change of Board Recommendation. In addition, the Purchaser shall extend the Offer (i) for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff or (ii) following Parent’s receipt of written notice from the Company within the three (3) Business Day period immediately preceding (and including) the Expiration Date advising Parent that the Company Board intends to make a Change of Board Recommendation or terminate this Agreement pursuant to Section 5.4(d), until (and including) the third (3rd) Business Day following the date of such receipt.
(f) If necessary to obtain sufficient Common Shares and Preferred Shares to reach the Short Form Threshold (without regard to the exercise of the Top-Up Option), the Purchaser may, and, if requested by the Company, shall (and shall cause the Purchaser to), provide for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of at least three (3) Business Days. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (ii) no change may be made that changes and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the form of consideration Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to be paid, decreases the price per Share or the number purchase of Shares sought in the Offer, imposes conditions the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the registered holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterthereof.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(ch) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the “Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisementDocuments”). Parent and Acquisition the Purchaser agree that they shall to cause the Schedule TOOffer Documents to be disseminated to holders of Shares, as and to the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with extent required by the Exchange Act Act. Parent and the rules and regulations thereunder and other Applicable Laws. Each of ParentPurchaser, Acquisition on the one hand, and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it for use in the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and Acquisition further the Purchaser agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide in writing the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (General Electric Co), Merger Agreement (Clarient, Inc)
The Offer. (aA) Provided An "Offer'' for the purposes of this Schedule is an offer to sell the Reversion to the Tenant free from encumbrances (other than this Lease and the Title Matters) and which:
(i) is unconditional;
(ii) is made irrevocably by the Landlord unless and until rejected or treated as rejected by the Tenant pursuant to paragraph 7.3(C) of this Part I of this Schedule;
(iii) is made in the form set out in Part II of this Schedule;
(iv) is submitted by the Landlord to the Tenant in duplicate, both parts of which are signed by the Landlord;
(v) specifies the Consideration;
(i) specifies whether any landlord's fixtures are included and if so itemises them.
(B) Within 25 Business Days of receipt (or deemed receipt of an Offer), the Tenant shall be entitled (but not obliged) to give notice in writing to the Landlord stating either:
(i) that nothing shall have occurred that, had it rejects the Offer referred in which event the provisions of paragraph 7.3(C) will apply; or
(ii) that it wishes to below been commenced, would give rise accept the Offer.
(C) In the event (i) the Tenant declines to a right to terminate accept the Offer pursuant to any paragraph 7.3(B)(i) or (ii) at the expiry of the conditions 25 Business Days' period specified in paragraph 7.3(B) the Tenant has not notified the Landlord that it wishes to acquire the Reversion and the Offer is thereby treated as rejected by the Tenant or (iii) the Tenant has not within 5 (five) Business Days after notifying the Landlord pursuant to paragraph 7.3(B)(ii) that it wishes to accept the Offer then accepted the Offer pursuant to paragraph 7.4, the Landlord may dispose of the Reversion to a third party for a consideration determined by the Landlord and which may be less than the Consideration specified in the Offer provided that:
(i) the Landlord shall keep the Tenant fully informed of its negotiations with third parties in respect of any transfer of the Reversion, including promptly disclosing drafts of any heads of terms (provided that such heads of terms may be redacted by the Landlord if the Landlord reasonably considers it to be necessary, save that the key terms including the consideration must be disclosed to the Tenant);
(ii) the third party transaction must be bona fide and on arm's length terms; and
(i) if the proposed disposal to a third party would be for less than the Consideration specified in the Offer, the Landlord shall first offer to sell the Reversion to the Tenant for the price which has been agreed with the proposed purchaser of the Reversion (the "Revised Offer") and the Tenant shall be entitled but not obliged within 10 Business Days of receipt (or deemed receipt), time being of the essence, of the Revised Offer to decline the Revised Offer or to accept the Revised Offer. In the event that the Tenant fails to respond to the Revised Offer within the said 10 Business Day period the Revised Offer will be treated as having been rejected by the Tenant. The Revised Offer shall comply in all respects with the provisions of paragraph 7.3(A) subject to any necessary revisions to the form set forth out in Annex I hereto, as promptly as reasonably practicable after Part II of this Schedule and the public announcement Consideration for the purposes of the Revised Offer shall be the consideration for which the Landlord is intending to dispose of the Reversion whether monetary or not monetary and the terms of this Agreementparagraph (C) apply to the Revised Offer as if it were an Offer, but save in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all respect of the outstanding shares time in which the Tenant must notify the Landlord of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net whether it intends to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafteraccept.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 3 contracts
Sources: Lease (Indivior PLC), Lease Agreement (Indivior PLC), Lease (Indivior PLC)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred thatand be continuing (unless waived by Parent or Sub), had the Offer referred to below been commencedSub shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition Sub to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (together with the "rules and regulations promulgated thereunder, the “Exchange Act"”)), an offer ) the Offer within ten (10) business days following the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")date hereof. The obligation obligations of Acquisition Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I III hereto. Acquisition Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price or and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) Sub shall not, and Parent shall cause Sub not to, decrease the Minimum Condition may be amended Offer Price or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paidin which any component of the Offer Price is payable, decreases the price per Share or decrease the number of Shares sought in the Offer, imposes conditions to waive or change the Offer in addition to those set forth Minimum Condition (as defined in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (bIII hereto), below) modify or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) amend any of the conditions set forth in Annex I shall not have been satisfied III hereto or waived at the scheduled otherwise modify or extended expiration date amend any other term or condition of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants each case in this Agreement, subject any manner adverse to the cure provisions holders of paragraph the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (b)(ii21) business days after commencement of Annex I. the Offer or the last extension (as permitted in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Acquisition but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule rule, regulation or regulation interpretation of the United States Securities and Exchange Commission (“SEC”), or the "SEC") staff thereof, applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant Offer. In addition to the Offer as of foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceExchange Act.
(cb) As soon as practicable on On the date of commencement of the Offer is commencedOffer, Parent and Acquisition Sub shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "“Schedule TO") with respect to the Offer”). The Schedule TO shall contain include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "“Offer Documents") ”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and respect or as otherwise required by Law. Parent and Acquisition Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof Schedule TO and any amendment thereto before it is filed with the SEC. , and Parent and Acquisition agree Sub shall give due consideration to provide in writing all reasonable additions, deletions or modifications thereto suggested by the Company and its counsel legal counsel. In addition, Parent and Sub agree to provide the Company with any comments comments, whether written or oral, that Parent, Acquisition Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents Documents, promptly after upon receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto.
(c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Covidien Delaware Corp.), Merger Agreement (Power Medical Interventions, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred been terminated in accordance with Article VIII and subject to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement (including that none of the terms of this Agreementevents or conditions set forth therein (the "Exchange Offer Conditions") shall have occurred and be existing and not waived by Parent), but in no event later than one week after the date hereofMerger Sub shall, Acquisition shall (and Parent shall cause Acquisition Merger Sub to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act Act) the Offer to purchase all of 1934 the issued and outstanding Company Common Shares (including any and all Rights) as promptly as reasonably practicable, but in no event more than twenty (20) Business Days following the first public announcement by Parent and the Company of the execution of this Agreement, and shall take the actions specified in Section 1.1(c). Each Company Common Share accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Parent (i) a fraction of a share of Parent Common Stock (the "Exchange Act")), an offer (the "OfferStock Portion") for all determined by dividing (y) the quotient obtained by dividing $3.5 million by the Base Price, by (z) the Fully Diluted Common Share Number, with cash paid in lieu of the outstanding shares of common stockfractional shares, par value $.01 per share, of the Company as provided below and (individually a "Share" and collectively, the "Shares"ii) at a price for each Share of $16.00, net to the seller an amount in cash (the "Cash Portion"), determined by dividing (y) the quotient obtained by dividing the Company's Net Cash as reflected on the Reference Balance Sheet, by (z) the Fully Diluted Common Share Number, rounded to the nearest whole cent, with .5 rounded up. The Stock Portion and the Cash Portion, or such greater aggregate amount per share paid by Merger Sub in the Offer, are referred to herein as the "Offer Price")." No certificate or scrip representing fractional shares of Parent Common Stock shall be issued pursuant to the Offer. All fractional shares of Parent Common Stock that a Company Stockholder would otherwise be entitled to receive as a result of the Offer shall be aggregated, and if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the Base Price by (ii) the fraction of a share of Parent Common Stock to which such holder would otherwise have been entitled. The obligation of Acquisition Merger Sub to accept for payment and to pay for any Company Common Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds satisfaction of the Shares on a fully- diluted basisExchange Offer Conditions, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested this Agreement and unvested applicable Laws. The Company Stock Options agrees that vest prior to the Effective Time, but excluding any Company Common Shares held by the Company or any of its subsidiarieswill not be tendered pursuant to the Offer.
(b) be validly tendered (the "Minimum Condition"), Parent and (ii) the other conditions set forth in Annex I hereto. Acquisition Merger Sub expressly reserves reserve the right from time to time, without the consent of the Company, to waive any Exchange Offer Condition, irrevocably increase the Offer Price or to make any other changes in to the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (iii) no decrease the Offer Price or change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Company Common Shares sought in the Offer, imposes (iii) modify or amend the Exchange Offer Conditions or impose conditions to the Offer in addition to those set forth the Exchange Offer Conditions in Annex Iany manner adverse to the Company Stockholders, extends (iv) waive the expiration date of the Offer beyond the initial expiration date of the Offer Minimum Condition or (v) except as provided in (bSection 1.1(d), below) or makes any other change which is adverse extend the Offer if all of the Exchange Offer Conditions are satisfied. Upon the terms and subject to the holders of the Shares. Subject to satisfaction or waiver of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to of the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
this Agreement (b) The including the Exchange Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfiedConditions), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition Merger Sub shall, and Parent shall cause Acquisition Merger Sub to, extend accept for payment and pay for all Company Common Shares validly tendered and not withdrawn prior to the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended as promptly as possible after expiration date of the Offer, (ii) such condition is reasonably capable unless terminated in accordance with its terms. Parent shall provide or cause to be provided to Merger Sub on a timely basis shares of being satisfied, Parent Common Stock and (iii) Company is in material compliance with all of its covenants in this Agreement, subject funds sufficient to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer accept for payment and pay for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable all Company Common Shares that Merger Sub becomes obligated to the Offer accept for payment and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pay for pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceOffer.
(c) As soon as practicable after the date of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with all amendments and supplements thereto, the "Form S-4") to register the offer and sale of the shares of Parent Common Stock pursuant to the Offer. The Offer shall be made by means of a preliminary prospectus included in the Form S-4 and containing the information required by Rule 14d-4(b) under the Exchange Act (the "Preliminary Prospectus"), subject only to the Exchange Offer Conditions. As soon as reasonably practicable on the date the Offer is commenced, Parent and Acquisition Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall Offer that will comply in all material respects with the provisions of all applicable federal securities laws, and will contain (including as an exhibit exhibits) or incorporate by reference the Offer to Purchase (or portions thereof) and Preliminary Prospectus, forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, any other documents required to be filed in connection with the Offer to Purchase and all amendments or supplements thereto (which documents, together constitute with any supplements or amendments thereto, are referred to collectively herein as the "Offer Documents") ), which shall be mailed to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company Stockholders. Merger Sub agrees promptly to correct any information provided by it for use in the Form S-4, the Schedule TO and the Offer Documents if and to the extent that such information they shall have become false or misleading in any material respectrespect (and the Company, with respect to information supplied by it specifically for use in the Form S-4, the Schedule TO or the Offer Documents, shall promptly notify Merger Sub and its counsel of any required corrections of such information and shall reasonably cooperate with Merger Sub with respect to correcting such information) and to supplement the Form S-4, the Schedule TO or the 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 (and the Company shall supplement the information provided by it specifically for use in the Form S-4, the Schedule TO or the Offer Documents to include any information that shall have become necessary or appropriate to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and Parent and Acquisition further agree to take all steps necessary to cause the Form S-4 and the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC and the other Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of SharesCompany Stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Form S-4, the Schedule TO and the Offer Documents prior to the filing thereof before they are filed with the SECSEC and before they are distributed to Company Stockholders. Parent and Acquisition agree to Merger Sub shall provide in writing the Company and its counsel with copies of any written comments Parent, Acquisition and telephone notification of any oral comments that Merger Sub or their its counsel may receive from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments. Merger Sub shall use its commercially reasonable efforts to respond to such comments promptly.
(d) So long as this Agreement has not been terminated in accordance with the terms hereof, and subject to the terms and conditions hereof (including the Exchange Offer Conditions), the Offer shall expire at midnight, Eastern Standard Time, on the date that is twenty (20) Business Days after the date on which the Offer is commenced; provided, however, that without the consent of the Company, Merger Sub may (i) from time to time, extend the Offer, if at the scheduled expiration date of the Offer any of the Exchange Offer Conditions shall not have been satisfied or waived, until such time as such Exchange Offer Conditions are satisfied or waived, (ii) from time to time, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, (iii) from time to time, extend the Offer for not more than a total of thirty (30) Business Days if there shall not have been delivered to Parent and Merger Sub an At Home Bankruptcy Decision or (iv) from time to time extend the Offer for any reason for not more than a total of thirty (30) Business Days beyond the latest expiration date that would otherwise be permitted by clause (i) or (ii) above. So long as this Agreement is in effect, the Offer has been commenced, the Exchange Offer Conditions have not been satisfied or waived, none of the events or conditions set forth in Annex II (a) through (m) have occurred and is existing at the time of any scheduled expiration date of the Offer and the failure of the Exchange Offer Conditions to be satisfied is not the result of a breach by the Company of its obligations hereunder, then, provided that such Exchange Offer Conditions are reasonably capable of being satisfied and subject to Merger Sub's right of termination under this Agreement, Merger Sub shall cause the Offer not to expire; provided, however, that Merger Sub shall not be required to extend the Offer beyond June 30, 2002. Merger Sub may, in addition, provide a "subsequent offer period" (as contemplated by Rule 14d-11 under the Exchange Act) of not less than three (3) Business Days following its acceptance for payment of Company Common Shares in the Offer.
(e) The parties understand and agree that the Offer Price has been calculated based on, among other things, the accuracy of the representation and warranty set forth in Section 4.3 and that, in the event the number of outstanding Company Common Shares, Company Stock Options or Company Stock Rights exceeds the amounts specifically set forth in Section 4.3 (including as a result of any stock split, reverse stock split, stock dividend, including any dividend or distribution of securities convertible into stock or stock equivalents of the Company, recapitalization, or other like change occurring after the date of this Agreement, but excluding any Company Common Shares issued pursuant to the Company Stock Plans, in accordance with, and subject to, Section 6.1(b)(iv)), the Offer Price shall be appropriately adjusted. The provisions of this Section 1.1(e) shall not, however, affect the representations and warranties set forth in Section 4.3.
Appears in 3 contracts
Sources: Merger Agreement (Ivillage Inc), Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below --------- been commenced, would give rise to a right to terminate the Offer terminated pursuant to any of the conditions set forth in Annex I heretoArticle IX, as promptly as reasonably practicable (but in any ---------- event not later than five business days after the public announcement of the terms execution and delivery of this Agreement), but in no event later than one week after the date hereof, Acquisition shall (and Parent Richfood shall cause Acquisition to) Merger Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), ) an offer to purchase (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Dart Common Stock at a price for each Share of $16.00160.00 per share, net to the seller in cash (such amount, or any greater amount per Share paid pursuant to the Offer, being hereinafter referred to as the "Offer PriceConsideration"). The obligation of Acquisition Richfood and Merger Subsidiary to commence the Offer, consummate the Offer, accept for payment and to pay for any Shares shares of Dart Common Stock validly tendered in the Offer and not withdrawn shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other those conditions set forth in Annex I ------- hereto, including the condition that a number of Shares representing a majority of all outstanding Shares on a fully- diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer. Acquisition The initial expiration date of the Offer will be midnight on the twentieth business day after the Offer is commenced.
(b) Merger Subsidiary expressly reserves the right to increase the price per share payable in the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, except that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and Dart, Merger Subsidiary shall not (iii) no decrease or change may be made that changes the form of consideration to be paid, decreases the price per Share Offer Consideration or decrease the number of Shares sought in pursuant to the Offer, imposes (ii) impose additional conditions to the Offer in addition to those set forth in Annex IOffer, extends (iii) extend the expiration date of the Offer beyond the initial expiration date of the Offer (except as required by Law or the applicable rules and regulations of the SEC) or (iv) amend any term of the Offer in any manner adverse to holders of shares of Dart Common Stock; provided, however, that, except as set forth -------- ------- above, Merger Subsidiary may waive any condition to the Offer in its sole discretion (other than the Minimum Condition, as defined in Annex I, which ------- Merger Subsidiary may not waive); and provided further, that the Offer may be -------- ------- extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the SEC; and provided, further, that the Offer may be extended by Merger Subsidiary for -------- ------- up to ten (10) business days after the initial expiration date if fewer than 90% of the Shares outstanding as of such date have been tendered at such date, so long as, in connection with such extension, Merger Subsidiary irrevocably waives the conditions to the Offer set forth in clauses (b), below(c), (f), (g)(1) and (h) of Annex I. Assuming the prior satisfaction or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction waiver of the conditions contained in Annex Ito the ------- Offer, Acquisition Merger Subsidiary shall accept for payment payment, and pay for, in accordance with the terms of the Offer, all Shares shares of Dart Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following practicable after the commencement expiration date thereof. IfNotwithstanding the foregoing, Merger Subsidiary shall, and Richfood agrees to cause Merger Subsidiary to, extend the Offer from time to time until June 30, 1998, if, and to the extent that, at a then-scheduled the initial expiration datedate of the Offer, the or any subsequent extension thereof, all conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied)or waived; provided, Acquisition may extend the Offer from time to time until December 31however, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, -------- ------- that Richfood and Merger Subsidiary shall have no such extension to exceed ten business days. Without limiting the right of Acquisition obligation to extend the Offer pursuant if Dart's failure to fulfill any obligation under this Agreement has been the immediately preceding sentence, at cause of or has resulted in the request failure of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on Richfood shall provide or cause to be provided to Merger Subsidiary all of the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect funds necessary to purchase any Shares of Dart Common Stock that Merger Subsidiary becomes obligated to purchase pursuant to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 3 contracts
Sources: Merger Agreement (Dart Group Corp), Merger Agreement (Richfood Holdings Inc), Merger Agreement (Dart Group Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 hereof and that none of the events set forth in clause (2) of Exhibit A hereto shall have occurred thator be existing, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth Parent shall cause Sub promptly (but in Annex I hereto, as promptly as reasonably practicable after no event later than five business days following the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange ActEXCHANGE ACT")), ) an offer (the "Offer") for to purchase all of the outstanding shares of common stockstock of the Company, par value $.01 per share, of the Company share (individually a "Share" and collectively, the "SharesSHARES") ), at a price for each Share of $16.005.25 per Share, net to the seller in cash (the "Offer PriceOFFER"). Subject to the satisfaction of the Offer Conditions (as defined below) and the terms and conditions of this Agreement, Sub shall, and Parent shall cause Sub to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable under applicable law. The obligation of Acquisition Sub to consummate the Offer and to accept for payment and to pay for any Shares tendered pursuant thereto shall be subject to only to those conditions set forth in Exhibit A hereto (i) the condition that at least two-thirds "OFFER CONDITIONS"), which may be asserted by Parent or Sub regardless of the Shares on a fully- diluted basiscircumstances giving rise to any such condition, together or (except as set forth below with respect to the Shares then owned Minimum Condition (as defined in Exhibit A)) waived by Parent and/or Acquisitionor Sub, (including for purposes of such calculation all Shares issuable upon exercise of all vested in whole or in part, at any time and unvested from time to time in their sole discretion. The Company Stock Options agrees that vest prior to the Effective Time, but excluding any no Shares held by the Company or any of its subsidiariesSubsidiaries (as defined in Section 9.11 hereof) will be validly tendered to Sub pursuant to the Offer. Sub will not, without the prior written consent of the Company, (i) decrease or change the "Minimum Condition")form of the consideration payable in the Offer, and (ii) decrease the number of Shares sought pursuant to the Offer (except as otherwise set forth in Section 1.01(c) hereof), (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer (provided, that Parent or Sub in their sole discretion may waive any of the conditions to the Offer other than the Minimum Condition) or (v) make any other change in the terms or conditions of the Offer which is materially adverse to the holders of the Shares. If the conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make Exhibit A are satisfied as of any other changes in the terms and conditions scheduled expiration date of the Offer; provided, howeverSub may extend the Offer for up to ten business days in the aggregate, that (i) and may extend the Minimum Condition may be amended or waived only Offer for a longer period with the prior written consent of the Company and (ii) no change may be made that changes or as required by law. If the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex IExhibit A are not satisfied or, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders extent permitted by this Agreement, waived by Parent or Sub as of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-any scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition Sub may extend the Offer from time to time until December 31(but not beyond the date that is fifty business days from the date hereof) and, 2000in any event, without upon the consent written request of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to Sub will extend the Offer pursuant from time to time until the immediately preceding sentence, at earlier of the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date consummation of the Offer in one or more periods of not more than ten forty business days each from the date hereof (but in no event later than December 31provided, 2000), that Sub shall not be obligated to make any such extension if (i) any it reasonably determines that all such conditions are not likely to be satisfied by such date or (ii) it shall then have the right to terminate this Agreement, pursuant to its terms).
(b) On the date of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, Parent and (iii) Company is in material compliance Sub shall file or cause to be filed with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TOSCHEDULE 14D-1") with respect to the Offer. The Schedule TO Offer which shall contain as an exhibit or incorporate by reference the Offer offer to Purchase (or portions thereof) purchase and forms of the related letter of transmittal and summary advertisement. Parent other ancillary Offer documents and Acquisition agree that they shall cause instruments pursuant to which the Schedule TOOffer will be made (collectively with any supplements or amendments thereto, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer DocumentsOFFER DOCUMENTS") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the their filing thereof with the SEC. Parent and Acquisition Sub agree to provide in writing the Company with, and its counsel to consult with the Company regarding, any comments Parent, Acquisition or their counsel that may receive be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof.
(c) In the event that the Minimum Condition is not satisfied on any scheduled expiration date of the Offer but there shall have been validly tendered and not withdrawn as of such commentsexpiration date a majority of the outstanding Shares on a fully diluted basis, Sub shall either (i) extend the Offer in accordance with, and subject to, the last sentence of Section 1.01(a) hereof for a period or periods not to exceed, in the aggregate, ten business days or (ii)(A) amend the Offer to reduce the number of Shares sought pursuant to the Offer, and the number of Shares needed to satisfy the Minimum Condition, to that number of Shares which, when added to the Shares then owned directly or indirectly by Sub, would equal forty-nine and nine-tenths percent (49.9%) of the Shares then outstanding (the "REVISED MINIMUM NUMBER"), (B) extend the Offer for a period of not less than ten business days following the public announcement of such amendment to the Offer (the Offer, as so amended, being sometimes referred to as the "49.9% OFFER") and (C) if, at the expiration of such extension, a greater number of Shares is tendered into the 49.9% Offer and not withdrawn, purchase, on a pro rata basis, the Revised Minimum Number of Shares.
Appears in 3 contracts
Sources: Merger Agreement (Henkel Acquisition Corp Ii), Merger Agreement (Dep Corp), Merger Agreement (Dep Corp)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall not, and shall cause Acquisition Sub not to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer"14d-2(a) for all of the outstanding shares ▇▇▇▇ ▇▇▇) the Offer prior to the date that is 14 days after the date hereof. Provided that this Agreement shall not have been terminated in accordance with Section 10.01, Parent shall cause Sub to, and Sub shall, commence (within the meaning of common stock, par value $.01 per share, Rule 14d-2(a) of the Company ▇▇▇▇ ▇▇▇) the Offer as promptly as practicable after such date (individually a "Share" and collectively, but in no event later than ten (10) Business Days following such date or such later date as the "Shares") at a price for each Share of $16.00, net to the seller parties may mutually agree in cash (the "Offer Price"writing). The obligation of Acquisition Sub shall be obligated to accept for payment and to, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the 1934 Act (relating to Sub’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares validly tendered shall and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with this Agreement), subject only to (i) the condition that at least two-thirds there shall be validly tendered (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares on a fully- diluted basisthat, together with the Shares then beneficially owned by Parent and/or Acquisitionand its Affiliates, represents at least a majority of the total number of Shares then outstanding on a Fully Diluted Basis (including for purposes of such calculation all Shares issuable upon exercise of all vested the “Minimum Condition”) and unvested Company Stock Options that vest prior to the Effective Timeother conditions set forth in Annex I (together with the Minimum Condition, but excluding any the “Offer Conditions”) and to no other conditions. Subject to the prior satisfaction or waiver (except for the Minimum Condition) of the Offer Conditions, promptly after the later of (i) the earliest date as of which Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Sub, Sub shall (and Parent shall cause Sub to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) in compliance with Rule 14e-1(c) of the 1934 Act for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Sub (and of Parent to cause Sub) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (except for the Minimum Condition) by Parent or Sub, of each of the Offer Conditions. The Company agrees that no Shares held by the Company or any of its subsidiariesSubsidiaries will be tendered pursuant to the Offer.
(b) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition Sub expressly reserves the right to increase waive (except for the Minimum Condition) any of the Offer Price or Conditions and to make any other changes in the terms and of or conditions of to the Offer; provided, however, provided that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and (iiwhich consent may be granted or withheld by the Company in its sole discretion) (i) no change may be made that changes the form of consideration to be paid, or decreases the price per Share Offer Price or the number of Shares sought in the Offer, imposes conditions (ii) no change may be made that amends or adds to the Offer Conditions or amends any other term of the Offer, in addition each case in any manner that is adverse to those set forth in Annex Ithe shareholders of the Company, extends and except for any change or amendment that is required by Law or any waiver of any Offer Condition (other than the Minimum Condition), (iii) the expiration date of shall not be extended except as otherwise provided herein, and (iv) Sub shall not terminate the Offer beyond the initial prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 10.01.
(c) Unless extended as provided in this Agreement, the Offer shall initially expire at 12:00 midnight, New York City time on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (except as provided in determined pursuant to Rule 14d-1(g)(3) and Rule 14e-1(a) under the 1934 Act). Notwithstanding the foregoing, (b), belowi) Sub shall (or makes any other change which is adverse to at the holders request of the Shares. Subject to satisfaction of Company, Parent shall cause Sub to) extend the conditions contained in Annex IOffer, Acquisition shall accept for payment all Shares validly tendered pursuant to if at the Initial Expiration Time or any extension thereof the Offer as soon as it is permitted to do so under applicable law and Conditions shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer not have not been satisfied (other than conditions which by their nature are not capable of being satisfiedto be satisfied on the Acceptance Date) or waived (except for the Minimum Condition), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such successive extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days (10) Business Days each (but except as required by Law) in no event later than December 31, 2000), if (i) any order to permit the satisfaction of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, Offer Conditions and (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) Sub shall extend the Offer for any period required by any rule Law or regulation by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the "“SEC"”) or the staff thereof or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Sub be required to extend the Offer beyond the End Date. Following expiration of the Offer, Sub may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act if, as of the expiration of the Offer, all of the Offer Conditions have been satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of the Company’s shareholders in accordance with the MBCA. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, including any Subsequent Offering Period, all Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”). The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer as shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes payable in respect thereof in accordance with Section 2.07.
(d) On the date of commencement of the scheduled or extended expiration dateOffer, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause Parent and Sub shall (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO , which shall contain include, as exhibits, an exhibit or incorporate by reference the Offer offer to Purchase (or portions thereof) purchase and forms of the a related letter of transmittal transmittal, a summary advertisement and summary advertisementother ancillary documents pursuant to which the Offer will be made (collectively, together with any exhibits, amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. securities Laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent and Acquisition agree Sub agrees that they it shall cause the Schedule TO, TO and the other Offer to Purchase and all amendments or supplements thereto (which together constitute Documents filed by any of them with the "Offer Documents") SEC to comply in all material respects with the Exchange 1934 Act and the rules and regulations thereunder and other Applicable Lawsapplicable Law. Each of Parent, Acquisition Sub and the Company agrees to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall furnish or otherwise make available to Parent and Sub and their legal counsel all information concerning the Company’s shareholders, including a list, as of the most recent practicable date, of the stockholders of the Company, mailing labels and any available listing or computer files containing the names and addresses of all record and beneficial holders of the Shares, and a list of security positions of Shares held in stock depositories that Parent or Sub may reasonably request in connection with any action contemplated by this Section 1.01(d), including communicating the Offer to the record and beneficial holders of the Shares; provided that, except as required by Law or in connection with steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent and Sub shall keep confidential and not disclose such information, as required by the Confidentiality Agreement, shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated, shall, upon request, deliver to the Company or destroy all copies of such information then in their possession or control in accordance with the Confidentiality Agreement. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC, and Parent and Sub shall give reasonable and good faith consideration to all reasonable additions, deletions or changes thereto suggested by the Company and its legal counsel that Parent reasonably determines to be appropriate. Parent and Acquisition Sub agree to provide in writing the Company and its counsel with any comments Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments, and the Company shall have the right to consult with Parent, Sub and their counsel before responding to any such comments, and Parent and Sub shall give reasonable and good faith consideration to each response to those views and comments of the Company and its legal counsel related thereto that Parent reasonably determines to be appropriate. Each of Parent and Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(e) Parent shall provide or cause to be provided to Sub as promptly as practicable following the expiration of the Offer and any Subsequent Offering Period, as applicable, all funds necessary to pay for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Mueller Industries Inc), Merger Agreement (Tecumseh Products Co), Merger Agreement (Tecumseh Products Co)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as reasonably practicable but in no event later than the fifth business day after the public announcement of the terms execution of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), and Acquisition Sub shall commence, an offer (as amended or supplemented in accordance with this Agreement, the "Offer") to purchase for cash all of the issued and outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Shares at a price for each Share of $16.0011.70 per Series A Preferred Share, $16.00 per Series B Preferred Share and $12.00 per Common Share net to the seller in cash (such prices, or such higher prices per Share as may be paid in the Offer, being referred to as the "Offer PricePrices"). The obligation of Acquisition Sub, and of Parent to cause Acquisition Sub, to consummate the Offer, to accept for payment and to pay for any Shares tendered shall be subject to only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other those conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make A hereto (any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition which may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought by Acquisition Sub in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as its sole discretion; provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000that, without the consent of the Company, for such amount of time Acquisition Sub shall not waive the Minimum Tender Condition (as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting defined in Annex A)).
(b) As soon as practicable on the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, Parent and (iii) Company is in material compliance Acquisition Sub shall file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable with respect to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO14D-1") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO), the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and will contain the rules offer to purchase relating to the Offer (the "Offer to Purchase") and regulations thereunder forms of related letters of transmittal and other Applicable Lawssummary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). Each Parent will deliver copies of Parent, Acquisition the proposed forms of the Schedule 14D-1 and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and (as well as any change thereto) to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and Company within a reasonable time prior to the extent required commencement of the Offer for prompt review and comment by applicable federal securities laws. The the Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SECcounsel. Parent and Acquisition agree to will provide in writing the Company and its counsel with in writing any comments Parentthat Acquisition Sub, Acquisition Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Parent and Acquisition Sub represent that the Schedule 14D-1 and the Offer Documents (including any amendments or supplements thereto) (i) shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder and (ii) shall not, in the case of the Schedule 14D-1 at the time filed with the SEC and at the time the Offer is consummated and in the case of the Offer Documents when first published, sent or given to the stockholders of the Company and at the time the Offer is consummated, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, that Parent and Acquisition Sub make no covenant, representation or warranty as to any of the information relating to and supplied by the Company in writing specifically for inclusion in the Schedule 14D-1 or the Offer Documents (including any amendments or supplements thereto). Parent and Acquisition Sub shall promptly correct any information in the Schedule 14D-1 or the Offer Documents that shall have become false or misleading in any material respect and take all steps necessary to cause such Schedule 14D-1 or Offer Documents as so corrected to be filed with the SEC and disseminated to the stockholders of the Company, as and to the extent required by applicable law. Parent and Acquisition Sub will provide copies of any amendments or supplements to the Offer Documents or the Schedule 14D-1 prior to any filing of such commentsamendments or supplements with the SEC in order to provide the Company and its counsel with a reasonable opportunity to review and comment.
(c) Each of Parent and Acquisition Sub expressly reserves the right to modify the terms of the Offer, except that neither Parent nor Acquisition Sub shall, without the prior written consent of the Company, decrease the consideration payable in the Offer, change the form of consideration payable in the Offer, decrease the number of Shares sought pursuant to the Offer, change or modify the conditions to the Offer in a manner adverse to the Company or holders of Shares, impose additional conditions to the Offer, waive the Minimum Tender Condition, or amend any term of the Offer in any manner adverse to the Company or holders of Shares. Notwithstanding the foregoing, Acquisition Sub, without the consent of the Company, (i) shall extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Acquisition Sub's obligation to accept for payment and pay for Shares shall not have been satisfied, until such time as such condition is satisfied or waived, if such condition may in the reasonable judgment of Acquisition Sub be satisfied in a time period reasonable for such satisfaction, (ii) may, if any such condition is not waived, extend the Offer until such condition is waived, (iii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (iv) may extend the Offer on one or more occasions for an aggregate period of not more than five business days if the Minimum Tender Condition has been satisfied and there has theretofore been validly tendered and not withdrawn Shares representing at least 70% but less than 90% of each class of the outstanding Shares (on a fully diluted basis).
(d) Parent will provide or cause to be provided to Acquisition Sub on a timely basis the funds necessary to accept for payment, and pay for, Shares that Acquisition Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Talley Manufacturing & Technology Inc), Merger Agreement (Score Acquisition Corp), Agreement and Plan of Merger (Talley Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.1 hereof and none of the conditions events set forth in Annex I heretohereto shall have occurred and be existing, Purchaser or a direct or indirect subsidiary of Parent as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and designated by Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act"))) the Offer as promptly as reasonably practicable following the execution of this Agreement, an offer (but in any event within 15 business days following the "Offer") for all date of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")this Agreement. The obligation of Acquisition Parent to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any satisfaction of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other those conditions set forth in Annex I hereto. Acquisition I. Parent expressly reserves the right from time to time, subject to Sections 1.1(b) and 1.1(d) hereof, to waive any such condition, to increase the Offer Price Per Share Amount, or to make any other changes in the terms and conditions of the Offer; provided. The Per Share Amount shall be net to the seller in cash, however, subject to reduction only for any applicable Federal back-up withholding or stock transfer taxes payable by the seller. The Company agrees that no Shares held by the Company or any of its Subsidiaries (ias defined below) will be tendered pursuant to the Minimum Condition may be amended or waived only with Offer.
(b) Without the prior written consent of the Company and Company, Parent shall not (iii) no decrease the Per Share Amount or change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Shares sought sought, (iii) amend or waive satisfaction of the Minimum Condition (as defined in the Offer, imposes Annex I) or (iv) impose additional conditions to the Offer in addition to those set forth in Annex I, extends the expiration date or amend any other term of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is manner adverse to the holders of the Shares. Subject Upon the terms and subject to satisfaction the conditions of the conditions contained in Annex IOffer, Acquisition shall Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer, all Shares validly tendered pursuant and not withdrawn prior to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterexpiration of the Offer.
(bc) The Offer shall initially be scheduled made by means of an offer to expire 20 business days following purchase (the commencement thereof. If, at a then-scheduled expiration date, the conditions "Offer to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (iPurchase") any of having only the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) hereto. As soon as practicable on the date the Offer is commenced, Parent and Acquisition Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") and, if necessary, jointly file with Target a Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer. The Schedule TO shall Offer that will comply in all material respects with the provisions of all applicable Federal securities laws, and will contain (including as an exhibit exhibit) or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent advertisement (which documents, together with any supplements or amendments thereto, and Acquisition agree that they shall cause the Schedule TO, any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to Purchase and all amendments or supplements thereto (which together constitute collectively herein as the "Offer Documents") to comply in all material respects with the Exchange Act ). Parent and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees Purchaser agree promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents and to cooperate with Target to amend the Schedule 13E-3 if and to the extent that such information documents shall have become false or misleading in any material respectrespect (and the Company, with respect to written information supplied by it specifically for use in the Schedule TO, Schedule 13E-3 or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Purchaser with respect to correcting such information) and to supplement the information provided by it specifically for use in the Schedule TO, Schedule 13E-3 or the 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, and Parent and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO or Schedule 13E-3, as so corrected or supplemented, to be filed with the SEC and the other Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the any Offer Documents prior to the filing thereof before they are filed with the SEC. Parent and Acquisition agree .
(d) The Offer to Purchase shall provide for an initial expiration date of 20 business days (as defined in writing Rule 14d-1 under the Company and its counsel with any comments Parent, Acquisition or their counsel may receive Exchange Act) from the SEC date of commencement. Purchaser agrees that it shall not terminate or its staff with respect withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer Documents promptly after receipt described in Annex I hereto shall not have been satisfied or earlier waived. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent may, from time to time extend the expiration date of the Offer until the date such commentsconditions are satisfied or earlier waived and Parent becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer, but in no event shall such extensions extend beyond the Termination Date (as defined below). Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the expiration date of the Offer (as it may be extended) for any period required by applicable rules and regulations of the SEC in connection with an increase in the consideration to be paid pursuant to the Offer and (ii) extend the expiration date of the Offer (as it may be extended) for up to ten business days, if on such expiration date the conditions for the Offer described on Annex I hereto shall have been satisfied or earlier waived, but the number of Shares that have been validly tendered and not withdrawn, when added to the Shares, if any, beneficially owned by Parent represents less than 90 percent of the then issued and outstanding Shares on a fully diluted basis.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Warburg Pincus Equity Partners Lp), Agreement and Plan of Merger (Hilltopper Holding Corp), Merger Agreement (Centennial Healthcare Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VII hereof, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the fifth business day following the date hereofof this Agreement, Acquisition shall (Purchaser shall, and Parent shall cause Acquisition Purchaser to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an offer () the "Offer") for all of Offer at the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). .
(b) The obligation obligations of Acquisition Purchaser to consummate the Offer and to accept for payment and to pay for any of the Shares tendered shall be subject only to the conditions set forth on Annex I hereto (i) the "Tender Offer Conditions"), including the condition that at least two-thirds a number of Shares equal to a majority of the Shares outstanding on a fully- fully diluted basis, together with the Shares then owned by Parent and/or Acquisition, basis (including for purposes of such calculation all Shares issuable upon exercise of all stock options and warrants which are vested or scheduled to vest on or before October 31, 1998 with an exercise price less than the Offer Price, and unvested Company Stock Options that vest conversion of all convertible securities or other rights to purchase or acquire Shares with a conversion price less than the Offer Price) shall be validly tendered and not withdrawn prior to the Effective Time, but excluding any Shares Expiration Date or shall be held by the Company Parent, Purchaser or any affiliate thereof or issuable upon the exercise or conversion of its subsidiaries) be validly tendered any equity or debt security held by Parent, Purchaser or any affiliate thereof which is then exercisable or convertible (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase The amount of the Offer Price or shall be net to make any other changes the seller in cash, upon the terms and subject to the conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended Offer and subject to reduction for any applicable federal back-up or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share other applicable withholding or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Sharesstock transfer taxes. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 remain open until 12:00 Midnight, New York City time, on the twentieth business days day following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business daysOffer. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, Parent and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), Purchaser agree that if (i) any all of the conditions set forth in Annex I shall hereto are not have been satisfied or waived at by the time of any scheduled or extended expiration date termination of the OfferOffer then, (ii) provided that all such condition is conditions are reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants Purchaser shall extend the Offer until such conditions are satisfied or waived; provided that Purchaser shall not be required to extend the Offer beyond September 15, 1998. As used in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to Expiration Date" means 12:00 Midnight, New York City time, on the Offer and (ii) if more than 80% but less than 90% twentieth business day following the commencement of the outstanding Shares shall have been validly tendered pursuant to this Offer, unless Purchaser extends the Offer as of permitted or required by this Agreement, in which case the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond "Expiration Date" means the latest expiration time and date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date to which the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsextended.
Appears in 3 contracts
Sources: Merger Agreement (Cybermedia Inc), Merger Agreement (Networks Associates Inc/), Merger Agreement (Networks Associates Inc/)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 9.01 and that none of the events or conditions set forth in Annex A shall have occurred that, had the Offer referred to below and be existing and shall not have been commenced, would give rise to a right to terminate the Offer pursuant to any of waived by Parent (the conditions set forth in Annex I heretoA, as promptly as reasonably practicable after the public announcement of the terms of this Agreement“Tender Offer Conditions”), but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934 1934, as amended (together with the "rules and regulations thereunder, the “Exchange Act"”)), an offer ) the Offer as promptly as practicable and in any event within ten (10) business days after the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")date hereof. The obligation of Acquisition Purchaser to accept for payment Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for any Shares each such tendered and not subsequently withdrawn Share shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I heretoTender Offer Conditions. Acquisition Purchaser expressly reserves the right to waive any such condition, to increase the Offer Price or Per Share Amount payable in the Offer, and to make any other changes in to the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company (i) the Minimum Condition (as defined in Annex A) may not be waived and (ii) no change may be made that (A) changes the form of consideration to be paidpaid pursuant to the Offer, (B) decreases the price per Per Share or the number of Shares sought Amount payable in the Offer, (C) reduces the maximum number of Shares to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex IA hereto, extends or (E) amends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided conditions set forth in (b), below) or makes Annex A hereto in any other change which is manner materially adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Subject to the terms and conditions thereof, the Offer shall initially be scheduled to expire 20 business days following the commencement thereof. Ifremain open until midnight, New York City time, at a then-scheduled expiration date, the conditions to end of the twentieth (20th) business day after the date that the Offer have not been satisfied is commenced (other than conditions which are not capable of being satisfiedthe “Expiration Date”), Acquisition unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, this Section 2.01(b) or as may be required by applicable Law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. Unless this Agreement or the Offer is terminated in accordance with its terms, Purchaser shall extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if time: (i) if the Minimum Condition is not satisfied on or before the Expiration Date; (ii) if any of the conditions of the Offer set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, clause (ii) such condition is reasonably capable of being satisfied, and the second paragraph of the Tender Offer Conditions are not satisfied on or before the Expiration Date; (iii) Company is if the condition set forth in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph clause (b)(iid) of Annex I. Notwithstanding A is not satisfied and is the foregoingsole condition remaining unsatisfied and the Company is using its reasonable best efforts to satisfy such condition; or (iv) if any applicable Law, Acquisition mayrule, without the consent of the Companyregulation, (i) extend the Offer for any period required by any rule interpretation or regulation position of the Securities and Exchange Commission (the "“SEC"”) or the staff of the SEC (the “SEC Staff”) thereof applicable to the Offer and requires such extension. Purchaser shall extend the Offer for up to five (5) business days after the satisfaction or waiver of the conditions set forth in clauses (i), (ii) or (iii) in the immediately preceding sentence, or for such period as may be required by any applicable Law, rule, regulation, interpretation or position set forth with respect to the condition in clause (iv) in the immediately preceding sentence; provided, however, that Purchaser shall not be required to extend the Offer beyond the Outside Date. Unless this Agreement or the Offer is terminated in accordance with its terms, Purchaser may in its sole election extend the Offer from time to time if more any of the Tender Offer Conditions, other than 80% the conditions set forth in the second sentence of this Section 2.01(b), are not satisfied or waived on or before the Expiration Date. If all of the Tender Offer Conditions are satisfied, but the number of Shares that have been validly tendered and not withdrawn in the Offer, together with any Shares then owned by Parent is less than 90% of the outstanding Shares shall have been validly tendered pursuant on a Fully Diluted Basis, Purchaser may, in its sole discretion, and subject to the Offer first sentence of subsection (c), commence a subsequent offering period (as of provided in Rule 14d-11 under the scheduled or extended expiration date, extend the Offer Exchange Act) for an aggregate period of not more than five three to 20 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceto acquire additional outstanding Shares.
(c) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and Parent shall cause it to, promptly after the Expiration Date, accept for payment and pay for (after giving effect to any required withholding Tax) all Shares that have been validly tendered and not withdrawn pursuant to the Offer. If Purchaser shall commence a subsequent offering period in connection with the Offer, Purchaser shall accept for payment and pay for (after giving effect to any required withholding Tax) all additional Shares validly tendered during such subsequent offering period.
(d) As soon promptly as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO shall contain as an exhibit or shall incorporate by reference an offer to purchase (the “Offer to Purchase (or portions thereofPurchase”) and forms of the related letter of transmittal and forms of notice of guaranteed delivery and any related summary advertisement. Parent and Acquisition agree that they shall cause advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments or supplements thereto (which together constitute thereto, being referred to herein collectively as the "“Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws”). Each of Parent, Acquisition Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 2.01(d). Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof such documents being filed with the SECSEC or disseminated to holders of Shares. Parent and Acquisition agree to Purchaser shall provide in writing the Company and its counsel with any comments that Parent, Acquisition Purchaser or their counsel may receive from the SEC or its staff the SEC Staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent or Purchaser to such comments.
Appears in 3 contracts
Sources: Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Radyne Corp), Merger Agreement (Comtech Telecommunications Corp /De/)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, that would give rise to a right to terminate this Agreement pursuant to Article 8, Buyer shall commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇) the Offer as promptly as reasonably practicable after the date of this Agreement but in no event later than the fifteenth (15th) Business Day following the date of this Agreement. The obligations of Buyer to accept for payment, and pay for, any Shares tendered pursuant to any the Offer shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "“Offer Price"Conditions”). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares date on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase which Buyer commences the Offer Price or is referred to make any other changes in as the “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is not prohibited by applicable Law) of the Offer Conditions, Buyer shall, at or as promptly as practicable following the Expiration Time (but in any event within two (2) Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and, at or as promptly as practicable following the Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the ▇▇▇▇ ▇▇▇) thereafter), pay (by delivery of funds to the depositary for the Offer) for all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the “Closing,”); provided, however, that if, but for this proviso, the Closing would have occurred on a Specified Quarter End Date, then, if elected by Buyer, the Closing shall take place on the first Business Day following the latest Specified Quarter End Date for a particular fiscal quarter, or on such other date to be specified by the Parties; provided, further, that Buyer shall confirm in writing to the Company, at the time of such election, that all Offer Conditions were satisfied on the date the Closing would have occurred but for the immediately preceding proviso and that all such Offer Conditions (iother than any Offer Condition the waiver of which would be prohibited by Law and except where the Company’s Willful Breach after delivery of such notice proximately caused the failure of such Offer Condition to be satisfied) shall be deemed to be satisfied as of such first Business Day. The date on which the Minimum Condition may Closing occurs is referred to in this Agreement as the “Closing Date”. The Offer Consideration payable in respect of each Share pursuant to the preceding sentence shall be amended paid, net of any applicable Tax withholding with respect to the Offer Consideration pursuant to Section 2.09, to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement.
(c) Buyer expressly reserves the right at any time to, in its sole discretion, waive, in whole or waived only with in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; provided that, without the prior written consent of the Company and Company, Buyer shall not:
(i) waive or change the Minimum Condition (except to the extent permitted under paragraph (A) of Annex I);
(ii) no decrease the Offer Consideration;
(iii) change may be made that changes the form of consideration to be paid, decreases paid in the price per Share or Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, imposes conditions to except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(bd) The Offer shall initially be scheduled to expire 20 business days at 9:00 a.m. (New York City time), or at such other time as the Parties may mutually agree, on the date that is the later of (i) twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) following the commencement thereof. If, at a then-scheduled of the Offer and (ii) such date that is six (6) Business Days after the date of the EGM (such initial expiration datedate and time of the Offer, the conditions to “Initial Expiration Time”) or, if the Offer have not has been satisfied (other than conditions which are not capable of being satisfiedextended pursuant to and in accordance with Section 2.01(e), Acquisition the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article 8, Buyer may or shall, as applicable, extend the Offer from time to time until December 31as follows:
(i) for the minimum period as required by any rule, 2000regulation, without the consent interpretation or position of the SEC, the staff thereof or the NASDAQ Global Select Market (the “NASDAQ”) applicable to the Offer; or
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is not prohibited under this Agreement and applicable Law), then Buyer shall extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company, for such amount ) in order to permit the satisfaction of time as is reasonably necessary to cause such Offer Conditions Condition(s); provided, however, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time occurring during the first one hundred eighty (180) days following the date hereof, the Offer Condition set forth in paragraph (B) of Annex I is not reasonably likely to be satisfiedsatisfied within such ten (10) Business Day extension period, no such extension to exceed ten business days. Without limiting the right of Acquisition then Buyer shall be permitted to extend the Offer pursuant on such occasion for up to the immediately preceding sentencetwenty (20) Business Days; provided further, at the request of Companyhowever, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each that (but in no event later than December 31, 2000), if (ix) any of the conditions set forth in Annex I Buyer shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject be required to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of to a date later than the Securities and Exchange Commission End Date (as the "SEC"End Date may be extended pursuant to Section 8.01(b)(i)) applicable to the Offer and (iiy) if more than 80% but less than 90% of the outstanding Shares sole then-unsatisfied Offer Condition is the Minimum Condition, Buyer shall have been validly tendered pursuant not be required to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not on more than five business days beyond the latest expiration date that would otherwise be permitted under clause two (i2) occasions in consecutive periods of this sentence.
up to ten (c10) As soon as practicable Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO"last Business Day of such period) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer such other duration as may be agreed to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act by Buyer and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsCompany).
Appears in 3 contracts
Sources: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
The Offer. (a) Provided that nothing As promptly as practicable after the date hereof (but in no event more than ten (10) days after the date of this Agreement), Merger Sub shall have occurred that(and Parent shall cause Merger Sub to) commence, had within the meaning of Rule 14d-2 under the Exchange Act, a tender offer (the “Offer”) to purchase all of the outstanding shares of Company Common Stock at a price per share equal to $12.80 net to seller in cash, without interest (such amount or any higher amount per share of Company Common Stock paid pursuant to the Offer referred to below been commencedin accordance with this Agreement, would give rise to a right to terminate the “Offer pursuant Price”), subject to any deduction or withholding of Taxes required by Applicable Law, on the terms and subject to the conditions set forth in Annex I heretothis Agreement. The consummation of the Offer, and the obligation of Merger Sub to accept for payment and pay for any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer, shall be subject only to: (i) there being validly tendered and “received” (as promptly defined by Section 251(h)(6) of the DGCL) in the Offer and not properly withdrawn prior to the Expiration Time that number of shares of Company Common Stock (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) that, together with the number of shares of Company Common Stock then owned by Parent, Merger Sub or any of their respective “affiliates” (as reasonably practicable after defined by Section 251(h)(6) of the public announcement DGCL), represents a majority of the shares of Company Common Stock then outstanding (the “Minimum Condition”), (ii) this Agreement not having been validly terminated in accordance with its terms (the “Termination Condition”) and (iii) the satisfaction, or waiver (to the extent such waiver is permitted by Applicable Law and this Agreement) by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit B (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).
(b) Subject to the satisfaction, or waiver by Merger Sub in accordance with the terms of this Agreement, but in no event later than one week after of the date hereofOffer Conditions, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (i) at or as promptly as practicable following the Expiration Time (in any event, no later than the Business Day immediately following the date on which the Expiration Time occurs), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and (ii) at or as promptly as practicable following the Expiration Time (and, in any event, no later than the Business Day immediately following the date on which the Expiration Time occurs), pay the aggregate Offer Price (by delivery of funds to the depositary for the Offer) for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The Parties agree that the Offer and Merger Sub’s obligation to accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer in accordance with the foregoing are not, and shall not be, subject to any condition other than the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Offer Conditions. Merger Sub expressly reserves the right (in its sole discretion) to (i) increase the Offer Price, (ii) waive any Offer Conditions (other than the Minimum Condition and the Termination 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, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to: (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) reduce the number of shares of Company Common Stock to be purchased in the Offer, (D) amend, modify or waive the Minimum Condition or the Termination Condition, (E) add any condition to the Offer, make any Offer Condition more difficult to satisfy or otherwise modify any Offer Condition in a manner that would delay consummation of the Offer, (F) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act, (G) reduce the time period during which the Offer shall remain open, (H) extend the Expiration Time other than in accordance with this Agreement or (I) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Company Common Stock (other than Parent, Merger Sub and their respective Affiliates) or the Company.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Securities Exchange Act Act) of 1934 the Offer (such time, the “Initial Expiration Time”), or if the Initial Expiration Time has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the "Initial Expiration Time, or such later time and date to which the Initial Expiration Time has been extended in accordance with this Agreement, the “Expiration Time”).
(e) Parent and Merger Sub agree that, if as of any scheduled Expiration Time, any of the Offer Conditions is not satisfied (other than the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at the Expiration Time) or, in Merger Sub’s sole discretion, waived (if such Offer Condition is permitted to be waived pursuant to this Agreement and Applicable Law), then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of time of up to five business days each (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act"))) (or such longer period as the Parties may agree in writing) in order to permit the satisfaction of such conditions; provided that, an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectivelyif at any scheduled Expiration Time, the "Shares"only unsatisfied Offer Condition (other than the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at a price for each Share of $16.00the Expiration Time) is the Minimum Condition, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) Merger Sub shall not be required to extend the condition that at least two-thirds Offer for more than a total of twenty (20) business days (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiariesExchange Act) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right if prior to increase the Offer Price any scheduled Expiration Time on or after such twentieth (20th) business day referred to make any other changes in the terms and conditions of the Offer; provided, however, that foregoing clause (i) of this proviso, Merger Sub has received from the Minimum Condition may Company a written notice of the Company’s election that Merger Sub not so extend the Offer, Merger Sub shall not (and Parent shall not permit Merger Sub to) extend the Offer beyond such scheduled Expiration Time. Notwithstanding anything to the contrary in the foregoing, (A) Merger Sub shall not be amended required to, and without the Company’s prior written consent shall not (and Parent shall not permit Merger Sub to), extend the Offer to a date later than the Termination Date, (B) Merger Sub shall not (and Parent shall not permit Merger Sub to), without the Company’s prior written consent, extend the Offer if all Offer Conditions have been satisfied and (C) Merger Sub shall extend the Offer for any period or waived only with periods required by Applicable Law, including applicable rules, regulations, interpretations or positions of the SEC or its staff, or the Nasdaq Global Select Market.
(f) Merger Sub shall not (and Parent shall not permit Merger Sub to) terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paidCompany, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which if this Agreement is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered terminated pursuant to the Offer as soon as it Article IX. If this Agreement is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer validly terminated pursuant to the immediately preceding sentenceArticle IX, at the request of Company, Acquisition shall, Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) promptly (and in any event within one business day) irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer is validly terminated prior to the Acceptance Time, extend Merger Sub shall (and Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Applicable Law, all tendered shares of Company Common Stock to the expiration date registered holders thereof.
(g) Parent shall cause to be provided to Merger Sub, on a timely basis, all of the Offer in one or more periods funds necessary to purchase all shares of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, (ii) such condition is reasonably capable of being satisfiedand shall cause Merger Sub to perform, and (iii) Company is in material compliance with on a timely basis, all of its covenants in Merger Sub’s obligations under this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(ch) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include as exhibits (without limitation) the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement and a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, and including all exhibits thereto, being referred to herein as the "Schedule TO") with respect to the Offer“Offer Documents”). The Schedule TO Company shall contain promptly furnish all information concerning the Company and its Affiliates to Parent as an exhibit or incorporate may be reasonably requested by reference the Offer Parent to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisementbe included therein. Parent and Acquisition agree that they Merger Sub shall promptly cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of SharesCompany Common Stock, in each case as and to the extent required by applicable federal securities lawsall Applicable Laws, including the Exchange Act. The If, prior to the Acceptance Time, any event occurs with respect to Parent or any Affiliate of Parent, or any change occurs with respect to other information included by Parent in the Offer Documents (other than information supplied the Company for inclusion therein), on the one hand, or any event occurs with respect to the Company or any Subsidiary of the Company, or any change occurs with respect to other information supplied by the Company for inclusion in the Offer Documents, on the other hand, upon becoming aware of such information Parent or the Company, as applicable, shall promptly notify the other of such event and shall cooperate with the other in the prompt filing with the SEC of any necessary amendment or supplement to the Offer Documents and, as required by Applicable Law, in disseminating the information contained in such amendment or supplement to the Company’s stockholders. Parent shall promptly notify the Company upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Offer Documents and shall provide the Company with copies of all correspondence between Parent and its counsel respective Representatives, on the one hand, and the SEC, on the other hand. Parent shall be given use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Offer Documents. Notwithstanding the foregoing, prior to filing or mailing the Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Parent shall (i) provide the Company with an opportunity to review and comment on such document or response (including the Offer Documents proposed final version of such document or response), (ii) consider in good faith all comments reasonably proposed by the Company and (iii) not file or mail such document or respond to the SEC prior to receiving the filing thereof approval of the Company, which approval shall not be unreasonably withheld, delayed or conditioned. Without limiting the foregoing, the Company and its counsel shall have the right to participate with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC related to the Offer, the Merger or the other Contemplated Transactions to the extent such participation is not prohibited by the SEC. Parent and Acquisition agree Merger Sub shall also take any other action (other than qualifying to provide do business in writing any jurisdiction in which it is not now so qualified) required to be taken under the Company Exchange Act or any applicable foreign or state securities laws and its counsel the rules and regulations thereunder in connection with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt and the Merger. Parent shall be responsible for 100% of such commentsthe fees, costs and expenses (except for the fees, costs and expenses of the Company’s advisors), including any filing fees, associated with the preparation, filing and mailing of the Offer Documents.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Essendant Inc), Merger Agreement (Staples Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 8.1, as promptly as reasonably practicable after following the public announcement date hereof and in any event within five (5) Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing), Parent and Merger Sub (i) shall amend the Offer to reflect the execution of this Agreement and the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition (ii) shall file an amendment to their Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and all other necessary documents and exhibits with the Securities and Exchange Commission (the “SEC”) and Parent shall cause Acquisition to) commence (within make all deliveries, filings, publications, mailings and telephonic notices required to be made in connection with the meaning Offer under the federal securities Laws, including Regulations 14D and 14E of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"))”) (such documents filed or required to be filed with the SEC and such other filings, an offer (the "Offer") for all of the outstanding shares of common stockdeliveries, par value $.01 per sharemailings and notices, of the Company (individually a "Share" collectively and collectivelytogether with any amendments, exhibits or supplements thereto, the "Shares"“Offer Documents”) at a price for each Share of $16.00and (iii) shall use their reasonable best efforts to consummate the Offer. If the Offer is consummated, net to the seller in cash (the "Offer Price"). The obligation of Acquisition Parent will cause Merger Sub to accept for payment and to pay for any Shares shares of Company Common Stock tendered shall be pursuant to the Offer, subject only to the conditions that (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested there shall be validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Timeexpiration of the Offer such number of shares of Company Common Stock that, but excluding any Shares held when added to the shares of Company Common Stock already owned by Parent, Merger Sub and their Subsidiaries, would constitute at least a majority of the shares of Company or any Common Stock outstanding determined on a Fully Diluted Basis immediately prior to the date of its subsidiaries) be validly tendered expiration of the Offer (the "“Minimum Condition"), ”) and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves hereto (collectively with the right to increase Minimum Condition, the “Tender Offer Conditions”) have been satisfied or waived in writing by Parent.
(b) Without the prior written consent of the Company, Parent and Merger Sub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to make be purchased in the Offer, impose additional conditions to the Offer or amend any other changes in the terms and conditions term of the Offer in a manner that is materially adverse to the holders of shares of Company Common Stock, except as provided in this Agreement. The initial expiration date of the Offer shall be December 27, 2006 (the “Expiration Date,” unless the period of time for which the Offer is open shall be extended in accordance with the immediately following sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire); provided, however, that Parent and Merger Sub may provide for a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligations that Merger Sub immediately accept and promptly pay for all shares of Company Common Stock tendered during the initial offering period and immediately accept and promptly pay for any shares of Company Common Stock tendered during such subsequent offering period). Notwithstanding the foregoing,
(i) the Minimum Condition may be amended or waived only with the prior written consent of the Company Parent and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Merger Sub may, without the consent of the Company, (i) from time to time, in their sole discretion, extend the Offer Expiration Date for such period (not to exceed ten (10) Business Days on any period required by single occasion) as Parent and Merger Sub may determine, to a date that is no later than March 31, 2007 (A) if immediately prior to the Expiration Date any rule or regulation of the Securities Tender Offer Conditions are not satisfied or waived by Parent, or (B) if immediately prior to the Expiration Date, the Minimum Condition is satisfied but the number of shares of Company Common Stock that have been validly tendered (and Exchange Commission (the "SEC"not withdrawn) applicable pursuant to the Offer and (ii) if more than 80% but is less than 90% of the number of shares of Company Common Stock outstanding Shares determined on a Fully Diluted Basis;
(ii) if any of the Tender Offer Conditions (other than the Minimum Condition) is not satisfied on any scheduled Expiration Date, then, if requested by the Company, Parent and Merger Sub shall extend the Expiration Date one or more times (the period of each such extension to be determined by Merger Sub) for up to fifteen (15) Business Days in the aggregate for all such extensions), provided, that at the time of such extension any such condition is reasonably capable of being satisfied and the Company has not received an Acquisition Proposal that has not been withdrawn;
(iii) if (A) the Company has not received an Acquisition Proposal that has not been withdrawn, (B) the failure to achieve the Minimum Condition is not a result of the Company having failed to comply in any material respect with any of its covenants and agreements contained in this Agreement and (C) the Tender Offer Conditions (other than the Minimum Condition) have been satisfied or, if not then satisfied, either (1) are reasonably capable of being satisfied within five Business Days or (2) are unsatisfied (or not reasonably capable of being satisfied) as a result of a breach of this Agreement by Parent or Merger Sub, then, if at any scheduled Expiration Date, the Minimum Condition shall not have been satisfied, at the request of the Company, Parent and Merger Sub shall extend the Expiration Date one or more times for such period (not to exceed five (5) Business Days on any single occasion) as may be requested by the Company, provided, that in no event shall Parent and Merger Sub be required to extend the Expiration Date more than an aggregate of ten (10) Business Days pursuant to this clause (iii);
(iv) if (A) the Company receives an Acquisition Proposal ten (10) or fewer Business Days prior to a scheduled Expiration Date, then, if on such scheduled Expiration Date, the Minimum Condition is not satisfied and (B) the Company provides Parent with a written request that Merger Sub extend the Expiration Date, then Parent and Merger Sub shall extend the Offer, to such date as is necessary to assure that the Offer does not expire until ten (10) Business Days from the date the Company received such Acquisition Proposal, provided, that the Company may not deliver such a request on more than one occasion; and
(v) Parent and Merger Sub may (A) increase the Offer Price and extend the Expiration Date to the extent required by applicable Law in connection with such price increase and (B) subject to prior consultation with the Company, extend the Expiration Date to the extent otherwise required by applicable Law, in each case in Parent’s and Merger Sub’s reasonable discretion and without the Company’s consent. Parent and Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the written consent of the Company except in the event that this Agreement is terminated pursuant to Section 8.1 hereof.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of the Tender Offer Conditions as of any Expiration Date, including the Minimum Condition, Parent will cause Merger Sub to accept for payment and pay for any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly after such Expiration Date (such date as Merger Sub shall be obligated to accept for payment any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer, the “Acceptance Date”). For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, Merger Sub shall not (and Parent shall cause Merger Sub not to) accept for payment any shares of Company Common Stock tendered pursuant to the Offer as of unless the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceMinimum Condition shall have been satisfied.
(cd) As soon as practicable Each of Parent and Merger Sub, on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretoone hand, and including all exhibits theretothe Company, on the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOother hand, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition Merger Sub further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the in advance of their filing thereof with the SECSEC and dissemination to stockholders of the Company. Parent and Acquisition agree Merger Sub shall provide to provide in writing the Company and its counsel with copies in writing of any comments and shall inform the Company of any oral comments that Parent, Acquisition Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses.
Appears in 3 contracts
Sources: Merger Agreement (Pilgrims Pride Corp), Merger Agreement (Gold Kist Inc.), Merger Agreement (Gold Kist Inc.)
The Offer. (a) Section 1.1.1 Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article 7 hereof and none of the conditions events set forth in Annex I heretohereto (the “Tender Offer Conditions”) shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition tothe Purchaser to (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"”)), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Timeas promptly as reasonably practicable, but excluding in any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 event within seven business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject an offer to purchase all outstanding Shares at the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the CompanyOffer Price, (iB) extend after affording the Offer for any period required by any rule or regulation of the Securities Company a reasonable opportunity to review and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration datecomment thereon, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (the “Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer (collectively, together with all any amendments and or supplements thereto, the “Offer Documents”) and including all exhibits thereto(C) use commercially reasonable efforts to consummate the Offer, the "Schedule TO") with respect subject to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions terms and conditions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities laws. The Company obligation of the Purchaser to accept for payment, and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with pay for, any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect Shares tendered pursuant to the Offer Documents promptly will be subject only to the satisfaction of the Tender Offer Conditions.
Section 1.1.2 Without the prior written consent of the Company, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer or impose conditions to the Offer other than those set forth in Annex I hereto or amend any term of the Offer in any manner adverse to the holders of Shares. The Offer shall remain open until the date that is 20 business days (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after receipt the commencement of the Offer (the “Expiration Date”), unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the terms of this Agreement or as may be required by applicable law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. If, at any Expiration Date, any of the Tender Offer Conditions are not satisfied or, if not satisfied, waived by the Purchaser, the Purchaser may, but shall not be required to, extend the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, the Purchaser will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as reasonably practicable after such commentsExpiration Date. The Purchaser may, but shall not be required to, provide a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act. Without the prior written consent of the Company, the Purchaser shall not accept for payment or pay for any Shares in the Offer if, as a result, the Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Condition (as defined in Annex I hereto).
Appears in 3 contracts
Sources: Merger Agreement (Xyratex LTD), Merger Agreement (Nstor Technologies Inc), Merger Agreement (Xyratex LTD)
The Offer. (a) Provided that nothing shall have occurred that, had Subject to the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex I heretothis Agreement, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week five business days after the date hereofannouncement of the execution of this Agreement, Acquisition shall (the Purchaser shall, and Parent shall cause Acquisition the Purchaser to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an offer () the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). ------------ The obligation of Acquisition the Purchaser to, and of Parent to cause the Purchaser to, accept for payment payment, and pay for, any shares of Common Stock tendered pursuant to pay for any Shares tendered the Offer shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (as defined in Annex A), (ii) no change may be made the condition that changes the form Purchaser shall have received the Financing (as defined below) contemplated by the commitment letter dated September 11, 1997 (the "Financing Commitment Letter"), pursuant to which, subject to certain terms --------------------------- and conditions thereof, the lenders named therein have committed to provide all of consideration the Financing (the "Financing") necessary to be paid, decreases consummate the price per Share or Offering and the number of Shares sought in --------- Merger and the Offer, imposes transactions contemplated hereby (the "Financing Condition") and ------------------- (iii) conditions to the Offer in addition to those set forth in Annex I, extends A attached hereto and to the expiration date other conditions of this Agreement. On the terms and subject to the conditions of the Offer beyond and this Agreement, the initial expiration date Purchaser shall, and Parent shall cause the Purchaser to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer (except as provided in (b), below) or makes any other change which is adverse that the Purchaser becomes obligated to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered purchase pursuant to the Offer as soon as it is permitted practicable after the expiration of the Offer. The Purchaser expressly reserves the right to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following modify the commencement thereof. If, at a then-scheduled expiration date, the conditions to terms of the Offer have not been satisfied (other than conditions which are not capable and to waive any condition of being satisfied)the Offer, Acquisition may extend the Offer from time to time until December 31, 2000except that, without the consent of the Company, for such amount the Purchaser shall not (i) reduce the number of time as is reasonably necessary shares of Common Stock subject to cause such Offer Conditions the Offer, (ii) reduce the price per share of Common Stock to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer paid pursuant to the immediately preceding sentenceOffer, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one (iii) modify or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of add to the conditions set forth in Annex I shall not have been satisfied A or waived at otherwise amend the scheduled or extended expiration date of Offer in any manner materially adverse to the Company's stockholders, (iv) except as provided in the next two sentences, extend the Offer, or (iiv) such condition is reasonably capable change the form of being satisfied, and (iii) Company is consideration payable in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Offer. Notwithstanding the foregoing, Acquisition the Purchaser may, without the consent of the Company, (i) extend the Offer for a period of not more than 10 business days beyond the initial expiration date of the Offer (which initial expiration date shall be 20 business days following commencement of the Offer), if on the date of such extension less than 90% of the outstanding shares of Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (ii) extend the Offer from time to time if at the initial expiration date or any extension thereof the Minimum Condition or any of the other conditions to the Purchaser's obligation to purchase shares of Common Stock set forth in paragraphs (a), (b) and (e) of Annex A shall not be satisfied or waived, until such time as such conditions are satisfied or waived, (iii) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer and (iiiv) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate any reason for a period of not more than five 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. In addition, the Purchaser shall at the request of the Company extend the Offer for five business days if at any scheduled expiration date of the Offer any of the conditions to the Purchaser's obligation to purchase shares of Common Stock shall not be satisfied; provided, however, that the Purchaser shall not be required to extend the Offer beyond November 30, 1997.
(cb) As soon as practicable on the date the Offer is commenced, Parent and Acquisition the Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO14D-l") with respect to the Offer). The Schedule TO shall contain -------------- 14D-1 will include disclosure sufficient to satisfy the requirements of Rule 13e-3 under the Exchange Act. The Schedule 14D-1 will include, as an exhibit or incorporate by reference exhibits, the offer to purchase pursuant to which the Offer shall be made (the "Offer to Purchase (or portions thereof-------- Purchase") and forms a form of the related letter of transmittal and summary advertisement. Parent advertisement -------- (collectively, together with any amendments and Acquisition agree that they shall cause the Schedule TOsupplements thereto, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer ----- Documents") to ). The Offer Documents will comply in all material respects with the Exchange Act --------- provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information furnished by the Company to Parent or the Purchaser, in writing, expressly for inclusion in the Offer Documents. The Company shall furnish to Parent and the rules Purchaser all information concerning the Company and regulations thereunder its affiliates required to be set forth in the Offer Documents. The information supplied by the Company to Parent or the Purchaser, in writing, expressly for inclusion in the Offer Documents and other Applicable Lawsby Parent or the Purchaser to the Company, in writing, expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not, at the time so provided, contain any untrue statement of a material fact or omit to state any material fact re- quired to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Each of Parent and the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Each of Parent, Acquisition Parent and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition further agree to the Purchaser will take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable the opportunity to review and comment on the Offer Documents prior to the filing thereof Schedule 14D-1 (including, without limitation, all documents filed therewith as exhibits) before it is filed with the SEC. In addition, Parent and Acquisition agree to the Purchaser will provide in writing the Company and its counsel in writing with any comments comments, whether written or oral, Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Hain Food Group Inc), Merger Agreement (Hain Food Group Inc)
The Offer. (a) Provided that nothing the Company shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretocomplied with its obligations under Section 1.2(b) and Section 1.2(c), as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but date hereof (and in any event no event later than one week after October 9, 2009), the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition the Purchaser to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act")”), an offer the Offer to purchase for cash all the outstanding Shares at the Offer Price, subject to: (i) there being validly tendered in the "Offer"Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, together with the number of Shares (if any) for all then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Shares then outstanding (determined on a fully diluted basis) and no less than a majority of the voting power of the shares of common stockcapital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in the election of directors or (if a greater majority) upon the adoption of this Agreement and approval of the Merger (collectively, par value $.01 per sharethe “Minimum Condition”) and (ii) the satisfaction, or waiver by Parent or the Purchaser, of the Company other conditions and requirements set forth in Annex I.
(individually a "Share" b) Subject to the satisfaction of the Minimum Condition and collectivelythe satisfaction, or waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I, the "Shares"Purchaser shall (and Parent shall cause the Purchaser to) at a price accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after the Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share of $16.00, validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash cash, without interest, less any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(c) The Offer shall be made by means of an offer to purchase (the "“Offer Price"). The obligation of Acquisition to accept for payment Purchase”) that describes the terms and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds conditions of the Shares on a fully- diluted basisOffer in accordance with this Agreement, together with including the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested Minimum Condition and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions and requirements set forth in Annex I hereto. Acquisition I. Parent and the Purchaser expressly reserves reserve the right to waive any of the conditions and requirements set forth in Annex I, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, the Purchaser shall not (i) decrease the Minimum Condition may be amended or waived only with the prior written consent of the Company and Offer Price, (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend any of the other conditions and requirements to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided I in (b), below) or makes any other change which is a manner adverse to the holders of Shares or the Shares. Subject Company or (vi) extend the Expiration Date in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If, on or prior to the Initial Expiration Date, the Minimum Condition, the HSR Condition or the Governmental Approval Condition has not been satisfied or waived by Parent or the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to), to the extent requested in writing by the Company no less than two (2) Business Days prior to the scheduled Expiration Date, extend the Offer for up to two (2) periods each of twenty (20) Business Days or less, in order to permit the satisfaction of such conditions; provided, however, that the conditions contained in Annex IPurchaser shall not be required to extend the Offer beyond December 31, Acquisition shall accept for payment all Shares validly tendered pursuant 2009 (the “Initial Outside Date”) if any condition to the Offer as soon as it is permitted has not been satisfied on or prior to do so under applicable law and shall pay for such Shares promptly thereafter.
the Initial Outside Date; provided, however, that, in the event that on the Initial Outside Date, (bi) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, all of the conditions to the Offer have been satisfied, or waived by Parent and the Purchaser, other than the HSR Condition and/or the Governmental Approval Condition, but the HSR Condition and/or the Governmental Approval Condition has not been satisfied or (other than conditions which are not capable of being satisfied)ii) either Parent, Acquisition may extend the Purchaser, the Company or their counsel has received comments from the SEC or its staff with respect to the Schedule TO, the Offer from Documents or the Schedule 14D-9 which remain unresolved or, if resolved, require the expiration date of the tender to be extended, the Initial Outside Date automatically shall be extended by 30 days one time to time until December 31(in each case, 2000such extended date, the “Extended Outside Date”). Notwithstanding the foregoing, the Purchaser may, in its sole discretion without the consent of the Company, for such amount of time as is reasonably necessary but subject to cause such Offer Conditions the Company’s right to be satisfiedterminate this Agreement pursuant to Article 7, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in for one or more periods of not more than ten business days each (but in no event later than December 31periods, 2000)if, if (i) at any then scheduled Expiration Date, any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreementwaived. In addition, subject to the cure provisions right of paragraph Parent to terminate this Agreement (b)(iiand the Offer) of Annex I. Notwithstanding in accordance with Section 7.1, the foregoing, Acquisition may, without the consent of the Company, (i) Purchaser shall extend the Offer for any period or periods required by any rule applicable Law or regulation applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the "“SEC"”) applicable (or its staff) or of the Nasdaq Global Market (“Nasdaq”).
(f) Notwithstanding the foregoing, if necessary to obtain sufficient Shares to reach the Short Form Threshold, the Purchaser may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) of up to twenty (20) Business Days, in accordance with Rule 14d-11 under the Exchange Act. Subject to the Offer terms and conditions of this Agreement and the Offer, the Purchaser shall (iiand Parent shall cause the Purchaser to) if more than 80% but less than 90% of the outstanding immediately accept for payment, and promptly pay for, all Shares shall have been that are validly tendered pursuant to the Offer as during any such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) terms of this sentenceSection 1.1(f).
(cg) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is validly terminated pursuant to Article 7. If this Agreement is validly terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is validly terminated or withdrawn by the Purchaser, or this Agreement is validly terminated prior to the acceptance for payment of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(h) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer that will comply with the applicable provisions of the federal securities Laws (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the “Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisementDocuments”). Parent and Acquisition the Purchaser agree that they shall to cause the Schedule TO, the Offer Documents to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects be filed with the SEC and disseminated to holders of Shares, in each case, as and to the extent required by the Exchange Act Act. Parent and the rules and regulations thereunder and other Applicable Laws. Each of ParentPurchaser, Acquisition on the one hand, and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and Acquisition further the Purchaser agree to take all steps necessary to cause the Schedule TO and the Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide in writing the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto by Parent, the Purchaser, or their counsel. The Company and its counsel shall be given an opportunity to review any such written or oral responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(i) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares occurring on or after the date hereof and prior to the Purchaser’s acceptance for payment of, and payment for, the Shares pursuant to the Offer.
(j) Nothing in this Section 1.1 shall affect any termination rights in Section 7.1.
Appears in 2 contracts
Sources: Merger Agreement (Gentek Inc), Merger Agreement (ASP GT Holding Corp.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition A hereto shall have occurred and be continuing (and Parent shall cause Acquisition to) not have been waived by Purchaser or Merger Sub), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days from the date of this Agreement, and the Offer shall remain open at least twenty (20) business days (as defined in Rule 14d-1(g)(3) of the Exchange Act) from commencement of the Offer (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"“Initial Expiration Date”). The obligation of Acquisition Merger Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the satisfaction or the waiver by Purchaser or Merger Sub of the following conditions: (i) there being validly tendered and not withdrawn prior to the condition that at least two-thirds expiration of the Shares on a fully- diluted basisOffer (x) that number of shares of Common Stock which, together with the Shares any shares of Common Stock then owned by Parent and/or AcquisitionPurchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement or the Stockholders Agreement), represents greater than 90% of the shares of Common Stock outstanding and (including for purposes of such calculation all Shares issuable upon exercise of all vested y) there being validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Timeexpiration of the Offer that number of shares of Convertible Preferred Stock which, but excluding together with any Shares held shares of Convertible Preferred Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Company or any Stock Option Agreement the Stockholders Agreement), represents 100% of its subsidiariesthe Convertible Preferred Stock outstanding (clauses (x) be validly tendered and (y) together, the "“Minimum Condition"”), ; and (ii) the other conditions set forth in Annex I A hereto. Acquisition Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions, to increase either or both of the Offer Price or Prices and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) Merger Sub shall not, and Purchaser shall cause Merger Sub not to, decrease either of the Minimum Condition may be amended Offer Prices, change the form of consideration payable in the Offer, decrease the number of Shares sought in the offer, impose additional conditions to the Offer, extend the Offer beyond the Initial Expiration Date except as set forth below, or waived only with amend any other condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company and (ii) no change may be made that changes the form of consideration such consent to be paid, decreases authorized by the price per Share Company Board of Directors or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (ba duly authorized committee thereof), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Merger Sub may, without the consent of the Company, (i) if, at any scheduled expiration of the Offer any of the conditions to Merger Sub’s obligation to accept Shares for payment shall not be satisfied or waived, extend the Offer beyond the Initial Expiration Date for a time period reasonably necessary to permit such condition to be satisfied, or (ii) extend the Offer for any period required by any rule rule, regulation or regulation interpretation of the United States Securities and Exchange Commission (“SEC”), or the "SEC") staff thereof, applicable to the Offer and (ii) if more than 80% but less than 90% Offer. Merger Sub may, without the consent of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration dateCompany, extend the Offer for an aggregate period in accordance with Rule 14d-11 under the Exchange Act. In addition, either or both of not more than five business days beyond the latest expiration date that would otherwise Offer Prices may be permitted under clause (i) increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of this sentencethe Company.
(cb) As soon promptly as practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference an offer to purchase (the “Offer to Purchase (or portions thereofPurchase”) and forms of the related letter of transmittal and summary advertisementall other ancillary Offer documents (collectively, together with all amendments and supplements thereto, the “Offer Documents”). Parent Purchaser and Acquisition agree that they Merger Sub shall cause the Schedule TOOffer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws. Purchaser and Merger Sub, on the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to Merger Sub will cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents prior to the filing thereof Schedule TO before it is filed with the SEC. Parent In addition, Purchaser and Acquisition Merger Sub agree to provide in writing the Company and its counsel with any comments Parentcomments, Acquisition whether written or oral, that Purchaser or Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to consult with the Company and its counsel prior to responding to any such comments.
(c) Purchaser and Merger Sub will file with the Commissioner of Commerce of the State of Minnesota and disseminate to the shareholders of the Company any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes.
Appears in 2 contracts
Sources: Merger Agreement (Safenet Inc), Merger Agreement (Safenet Inc)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoArticle 11 hereof, as promptly as reasonably practicable after the public announcement of the terms date of this Agreement, but in no event later than one week after the date hereof, Acquisition Merger Subsidiary shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (1▇▇▇ ▇▇▇) the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The Offer and the obligation of Acquisition Merger Subsidiary to accept for payment and to pay for any Tender Shares tendered shall be subject only to (i) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Offer, prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, Tender Shares on a fully- diluted basisthat, together with the Tender Shares then directly or indirectly owned by Parent and/or AcquisitionMerger Subsidiary, (including for purposes represent a majority of such calculation all the Voting Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "“Minimum Condition"), ”) and (ii) to the other conditions set forth in Annex I hereto. Acquisition Merger Subsidiary expressly reserves the right to increase waive any of the conditions to the Offer Price or and to make any other changes change in the terms and of or conditions of to the Offer; provided, however, provided that unless otherwise provided by this Agreement or previously approved by the Company in writing (i) the Minimum Condition may not be amended or waived only with the prior written consent of the Company and waived, (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share Offer Price or the number of Tender Shares sought in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date I or amends any terms of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is manner adverse to the holders of Tender Shares and (iii) the SharesOffer may not be extended except as set forth in this Section 2.01(a). Subject to satisfaction the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (determined using Rule 14d-1(g)(3) of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to 1▇▇▇ ▇▇▇) after the date that the Offer as soon as it is permitted to do so under applicable law and commenced. Notwithstanding the foregoing, Merger Subsidiary shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer (1) from time to time until December 31, 2000, without the consent for successive periods of no more than 10 Business Days each (or such longer period as may be consented to by the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions consent not to be satisfiedunreasonably withheld) if, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) any of the conditions to the Offer shall not have been satisfied or waived, until such condition is reasonably capable of being satisfiedconditions are satisfied or waived, and (iii2) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities SEC or the staff thereof applicable to the Offer or any period required by Applicable Law. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide one or more subsequent offering periods (together, the “Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and Exchange Commission upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, promptly after the expiration of the Offer, all Tender Shares (the "SEC"x) applicable validly tendered and not withdrawn pursuant to the Offer and (iiy) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to in the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceSubsequent Offering Period.
(cb) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, thereto and including all exhibits thereto, the "“Schedule TO"”) with respect to that shall include the Offer. The Schedule TO shall contain summary term sheet required thereby and, as an exhibit exhibits or incorporate incorporated by reference thereto, the Offer to Purchase (or portions thereof) and forms a form of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, if any, in respect of the Offer to Purchase and all (collectively, together with any amendments or supplements thereto (which together constitute thereto, the "“Offer Documents"”) and (ii) cause the Offer Documents to comply be disseminated to holders of Tender Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all material respects with information concerning the Exchange Act and Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the rules and regulations thereunder and other Applicable LawsSchedule TO or the Offer Documents. Each of Parent, Acquisition Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Acquisition further Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Tender Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents prior to the filing thereof each time before any such document is filed with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Acquisition agree to Merger Subsidiary shall provide in writing the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Acquisition Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of such commentsthose comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC.
Appears in 2 contracts
Sources: Merger Agreement (Kla Tencor Corp), Merger Agreement (Therma Wave Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.1 and none of the events or conditions set forth in Annex I heretohereto shall have occurred and be continuing and not have been waived by Parent or Purchaser, as promptly as reasonably practicable after the public announcement and, in any event, within ten (10) Business Days of the terms date of this Agreement, but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934 1934, as amended (together with the "rules and regulations thereunder, the “Exchange Act"”)), an offer () the "Offer") Offer to purchase for cash all Shares at the Offer Price. The obligations of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the condition expiration of the Offer that at least two-thirds number of Shares which represents a majority of the Shares outstanding on a fully- fully-diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered basis (the "“Minimum Condition"), ”) and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves Subject to the right to increase prior satisfaction or waiver by Parent or the Purchaser of the Minimum Condition and the other conditions of the Offer Price or to make any other changes set forth in Annex I hereto, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and conditions accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after expiration of the Offer, which shall initially be the 20th Business Day following the commencement of the Offer; provided, however, that (ix) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond if on the initial expiration date of the Offer (except as provided in (b), below) or makes on any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be subsequent scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer (as extended in one or more periods of not more than ten business days each (but in no event later than December 31, 2000accordance with this Agreement), if (i) any of all conditions to the conditions set forth in Annex I Offer shall not have been satisfied or waived at waived, the scheduled or extended Purchaser may, from time to time, in its sole discretion, extend the Offer for such period as the Purchaser may determine; provided, however, that if on the initial expiration date of the OfferOffer the conditions to the Offer set forth in paragraphs (c), (iid) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(iie) of Annex I. Notwithstanding I hereto shall each be satisfied (or, in the foregoingcase of paragraphs (d) and (e), Acquisition if any such breach or failure to comply that has caused such non-satisfaction of the condition is objectively curable within ten (10) Business Days) but any other condition to the Offer shall not have been satisfied or waived, Purchaser shall be obligated to extend the Offer for one or more periods of time of up to ten (10) Business Days each (or such longer period as Purchaser may agree in writing) until such conditions have been satisfied or waived; provided, that Purchaser shall not be required to extend the Offer beyond the date that is thirty (30) Business Days following the initial expiration of the Offer; (y) the Purchaser may, without the consent of the Companyin its sole discretion, (i) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (SEC or the "SEC") staff thereof applicable to the Offer; and (z) the Purchaser may, in its sole discretion, provide a “subsequent offering period” for three (3) to twenty (20) Business Days to acquire outstanding untendered Shares in accordance with Rule 14d-11 under the Exchange Act if the Minimum Condition and all of the other conditions set forth in Annex I hereto are satisfied or waived, but the number of Shares that have been validly tendered and not withdrawn in the Offer and (ii) if more than 80% but accepted for payment, together with any Shares then owned by Parent, is less than 90% of the outstanding Shares Shares. Purchaser shall not extend the Offer following the termination of this Agreement. In addition, the Purchaser may increase the Offer Price and extend the Offer to the extent required by Law in connection with such increase, in each case in its sole discretion and without the Company’s consent, but Purchaser and Parent shall not, without the prior written consent of the Company, (A) decrease the Offer Price (as it may have been validly tendered increased hereunder) or change the form of consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, (C) amend or waive the Minimum Condition, (D) add to the conditions to the Offer set forth in Annex I hereto or modify such conditions in a manner adverse to the holders of Shares, (E) extend the Offer, except as permitted by this Section 1.1(a) or (F) make any other change in the terms or conditions of the scheduled or extended expiration date, extend Offer that is adverse to the holders of Shares. The Offer for an aggregate period of may not more than five business days beyond the latest be terminated prior to its expiration date that would otherwise (as such expiration date may be permitted under clause (i) of extended and re-extended in accordance with this sentenceAgreement), unless this Agreement is validly terminated in accordance with Article VIII. If Purchaser shall commence a subsequent offering period in connection with the Offer, Purchaser shall accept for payment and pay for all Shares validly tendered during such subsequent offering period.
(cb) As soon as practicable on On the date the Offer is commenced, Parent and Acquisition Purchaser shall file with the SEC United States Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer, which shall include the offer to purchase, form of the letter of transmittal and form of notice of guaranteed delivery (collectively, together with all any amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect “Offer Documents”). Subject to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Company’s compliance with Section 1.2(b), Parent and Acquisition agree that they the Purchaser shall cause the Schedule TO, the Offer Documents to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") be disseminated to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Lawsholders of Shares as required by applicable U.S. federal securities laws. Each of Parent, Acquisition Parent and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition respect or as otherwise required by Law. The Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case Shares as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. SEC and Parent and Acquisition the Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. In addition, Parent and the Purchaser agree to provide in writing the Company and its counsel with any comments or communications that Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or the Purchaser’s, as the case may be, receipt of such comments, and any written or oral responses thereto, and shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Purchaser to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and the Purchaser or their counsel in any discussions or meetings with the SEC.
Appears in 2 contracts
Sources: Merger Agreement (Kinetic Concepts Inc /Tx/), Merger Agreement (Lifecell Corp)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoBuyer shall, as promptly as reasonably practicable after the public announcement of the terms date of this Agreement, but in no event later than one week after the twenty-fifth (25th) Business Day following the date hereofof this Agreement (unless another date is agreed in writing by the parties hereto) and, Acquisition shall without the consent of the Company, not to be unreasonably withheld, conditioned or delayed, no earlier than the twentieth (and Parent shall cause Acquisition to20th) Business Day following the date of this Agreement, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer () the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation obligations of Acquisition Buyer to accept for payment payment, and to pay for for, any Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver (ito the extent permitted under this Agreement) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto(the “Offer Conditions”). Acquisition expressly reserves the right to increase The date on which Buyer commences the Offer Price or is referred to make any other changes in as the “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is permitted hereunder and not prohibited by applicable Law) of the Offer Conditions, Buyer shall (and Parent shall cause Buyer to), at or as promptly as practicable following the Expiration Time (but in any event within two (2) Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and, at or as promptly as practicable following the Acceptance Time (but in any event within two (2) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) thereafter), pay (by delivery of funds to the depositary for the Offer) for all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the “Closing”). The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. The Offer Consideration payable in respect of each Share pursuant to the first sentence of this Section 2.1(b) shall be paid (without interest and less applicable withholding Taxes) on the terms and subject to the conditions of this Agreement.
(c) Buyer expressly reserves the right at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of, or conditions to, the Offer; provided, howeverthat, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company Company, Buyer shall not (and Parent shall cause Buyer not to):
(i) waive or change the Minimum Tender Condition (except to the extent contemplated under paragraph 1(a) of Annex I);
(ii) no decrease the Offer Consideration;
(iii) change may be made that changes the form of consideration to be paid, decreases paid in the price per Share or Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, imposes conditions to except as otherwise provided in this Agreement;
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to ; or
(vii) increase the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterConsideration by an increment of less than $0.10 per Share.
(bd) The Offer shall initially be scheduled to expire 20 business days at 9:00 a.m. (Eastern Time), or at such other time as the parties hereto may mutually agree, on the date that is fifty (50) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement thereof. If, at a then-scheduled of the Offer (unless another date is agreed in writing by the parties hereto); provided that in no event shall such expiration datetime occur prior to the date of the EGM (such initial expiration date and time of the Offer, the conditions to “Initial Expiration Time”) or, if the Offer have not has been satisfied (other than conditions which are not capable of being satisfiedextended pursuant to and in accordance with Section 2.1(e), Acquisition the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article VI, Buyer may or shall (in which case Parent shall cause Buyer to), as applicable, extend the Offer from time to time until December 31as follows:
(i) Buyer shall (and Parent shall cause Buyer to) extend the Offer for the minimum period as required by any rule, 2000regulation, interpretation or position of the SEC, the staff thereof, or Nasdaq, as applicable to the Offer;
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is permitted under this Agreement or applicable Law), then Buyer shall (and Parent shall cause Buyer to) extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (Eastern Time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time, the Offer Condition set forth in paragraph 1(b) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer may extend the Offer on such occasion for periods of up to twenty (20) Business Days; provided, further, that (x) Buyer shall not be required to, and shall not without the prior written consent of the Company, for such amount of time extend the Offer to a date later than the Outside Date (as the Outside Date may be extended pursuant to Section 6.2(b)) and (y) if the only remaining unsatisfied Offer Condition is reasonably necessary to cause such Offer Conditions to the Minimum Tender Condition, Buyer shall not be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition required to extend the Offer pursuant on more than two (2) occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (Eastern Time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company);
(iii) Buyer may extend the Offer to such other date and time as may be mutually agreed by Parent and the Company in writing; or
(iv) Buyer may extend the Offer to the Business Day immediately preceding sentencefollowing the date that is thirty (30) calendar days after the date of the EGM or Subsequent EGM at which the Merger Resolutions are approved.
(f) Following the Acceptance Time, at the request of Company, Acquisition shall, Buyer shall (and Parent shall cause Acquisition Buyer to, extend ) (and the Offer Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 promulgated under the Exchange Act of not less than ten (10) Business Days (calculated in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act). In the event that prior to the expiration date of the Offer in one Subsequent Offering Period, Buyer or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of Parent has publicly announced its covenants in this Agreementintention to, subject to the cure provisions terms of paragraph this Agreement, effectuate the Asset Sale, Buyer shall (b)(iiand Parent shall cause Buyer to) of Annex I. Notwithstanding (and the foregoing, Acquisition may, without the consent of the Company, (iOffer Documents shall so indicate) extend the Subsequent Offering Period for at least five (5) Business Days to permit any remaining Minority Shareholders to tender their Shares in exchange for the Offer Consideration (such extension, the “Minority Exit Offering Period”). Notwithstanding anything to the contrary contained herein, in the event that promptly following the Expiration Time, Buyer or Parent has publicly announced its intention to, subject to the terms of this Agreement, effectuate the Mergers, Buyer shall not be required to provide a Subsequent Offering Period (or, for the avoidance of doubt, a Minority Exit Offering Period), but may do so if Buyer chooses.
(g) The Offer may not be terminated prior to the Initial Expiration Time or the then-scheduled Expiration Time (as the same may be extended pursuant to Section 2.1(e)) unless this Agreement is validly terminated pursuant to Article VI. If this Agreement is validly terminated pursuant to Article VI, Buyer shall (and Parent shall cause Buyer to) promptly (and in any period required by any rule or regulation of the Securities and Exchange Commission event within twenty-four (the "SEC"24) applicable to hours following such valid termination) terminate the Offer and (ii) if more than 80% but less than 90% of not acquire any Shares pursuant thereto. If the outstanding Offer is terminated in accordance with this Agreement by Parent prior to the acceptance for payment and payment for Shares shall have been validly tendered pursuant to the Offer Offer, Buyer shall (and Parent shall cause Buyer to) as promptly as practicable, and in any event within three (3) Business Days of the scheduled or extended expiration datetermination, extend return, and shall cause any depositary acting on behalf of Buyer to return, in accordance with applicable Law, all tendered Shares to the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted registered holders thereof. Nothing in this Section 2.1(g) shall affect any termination rights under clause (i) of this sentenceArticle VI.
(ch) As soon as practicable on the date the Offer is commencedCommencement Date, Parent and Acquisition Buyer shall (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, thereto and including all exhibits thereto, the "“Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit ”), which contains or incorporate incorporates by reference the Offer an offer to Purchase (or portions thereof) purchase and forms of the a related letter of transmittal and summary advertisement. Parent other appropriate ancillary offer documents required to be included therein (such Schedule TO and Acquisition agree that they shall cause the Schedule TO, documents included therein pursuant to which the Offer to Purchase and all will be made, together with any amendments or supplements thereto (which together constitute and including exhibits thereto, the "“Offer Documents"”) and (ii) cause the Offer Documents to comply in be disseminated to holders of Shares to the extent required by applicable United States federal securities Laws and any other applicable Law. The Company shall furnish promptly to Parent and Buyer all material respects with information concerning the Company required by the Exchange Act and applicable Law, or as reasonably requested by Parent, to be set forth in the rules and regulations thereunder and other Applicable LawsOffer Documents. Each of ParentParent and Buyer, Acquisition on the one hand, and the Company Company, on the other hand, agrees promptly to correct any information provided by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that such information shall have has become (or has become known to be) false or misleading in any material respect, and . Parent and Acquisition further agree to take all steps necessary Buyer shall use their reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable United States federal securities lawsLaws and any other applicable Law. The Parent and Buyer shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents prior to the filing thereof each time before any such document is filed with the SEC, and Parent and Buyer shall give due consideration to all reasonable additions, deletions or changes to such documents (and any amendments thereto) suggested thereto by the Company and its counsel. Parent and Acquisition agree to Buyer shall provide in writing the Company and its counsel with (A) any comments Parentor other communications, Acquisition whether written or oral, that Parent and Buyer or their counsel may receive from time to time from the SEC or its staff or other Governmental Bodies with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the responses of Parent and Buyer to those comments and to provide comments on those responses (and Parent and Buyer shall give due consideration to all reasonable additions, deletions or changes to such responses suggested by the Company and its counsel), including by participating with Parent and Buyer or their counsel in any discussions or meetings with the SEC or other Governmental Bodies to the extent such participation is not prohibited by the SEC or other Governmental Bodies. The parties hereto agree that, notwithstanding the notice provisions of this Agreement, communications with respect to the Offer Documents, including communications related to any SEC comments, may be made on behalf of each party by email through their respective counsel.
(i) Parent shall provide or cause to be provided to Buyer on a timely basis the funds necessary to purchase any Shares that Buyer becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Purchase Agreement (Stryker Corp), Purchase Agreement (Wright Medical Group N.V.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 7.1, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but (and in no any event later than one week within seven (7) Business Days) after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer () the "Offer") for Offer to purchase all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Shares at a price for each Share of $16.00, net per share equal to the seller in cash (the "Offer Price"). .
(a) The obligation of Acquisition Purchaser to, and of Parent to cause Purchaser to, accept for payment and to pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds satisfaction, or waiver by Purchaser or Parent, of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I heretoA (the “Offer Conditions”). Acquisition Subject to the satisfaction, or waiver by Purchaser or Parent, of the Offer Conditions, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and irrevocably accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable (and in any event within three (3) Business Days) after the Expiration Date and in any event in compliance with Rule 14e-1(c) under the Exchange Act (the time of such acceptance for payment, the “Acceptance Time”); provided, however, that notwithstanding anything herein to the contrary, in no event shall Purchaser be required to accept for payment, and pay for, Shares validly tendered (and not withdrawn) pursuant to the Offer until the Marketing Period shall have been completed. The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller of such Share in cash, without interest, subject to the withholding of any Taxes required by applicable Law, on the terms and subject to the conditions set forth in this Agreement. The time scheduled for payment for shares of Company Common Stock accepted for payment pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.”
(b) The Offer shall be made by means of an offer to purchase that describes the terms and conditions of the Offer as set forth in this Agreement. Purchaser and Parent expressly reserves reserve the right to waive (in whole or in part) any Offer Condition at any time and from time to time, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and Company, Purchaser shall not (i) decrease the Offer Price, (ii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (iii) reduce the number of Shares sought to be purchased in the Offer, imposes (iv) amend, modify or waive the Minimum Condition, (v) amend, modify or supplement any Offer Condition in a manner that is or could reasonably be expected to be adverse to any holder of Shares in its capacity as such or impose conditions to the Offer that are in addition to those set forth in Annex I, extends the expiration date of the Offer beyond Conditions or (vi) extend or otherwise change any time period for the initial expiration date performance of any obligation of Purchaser or Parent (including the Offer Expiration Date) in a manner other than pursuant to and in accordance with this Agreement.
(except c) Unless extended as provided in (b)this Agreement, below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following at midnight, New York City time, on the date that is twenty (20) Business Days (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the commencement thereofof the Offer (the “Initial Expiration Date”). IfNotwithstanding the foregoing, (x) if, at a midnight, New York City time, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied or, to the extent waivable in accordance with the terms hereof, has not been waived by Purchaser or Parent, Purchaser shall (subject to the rights or remedies of the parties hereto hereunder, including under Article VII), extend (and re-extend) the Offer and its expiration date beyond the Initial Expiration Date (the Initial Expiration Date as it may be extended herein is referred to as the “Expiration Date”) for one or more periods, in consecutive increments of up to ten (10) Business Days each, the length of each such period to be determined by Parent in its sole discretion (or such longer period as Parent and the Company may mutually agree) to permit such Offer Condition to be satisfied; (y) Purchaser shall have the right in its sole discretion to extend the Offer beyond any then-scheduled expiration dateof the Offer for one or more consecutive increments of up to five (5) Business Days each, the conditions length of each such period to be determined by Parent in its sole discretion (or such longer period as Parent and the Company may mutually agree) to the extent (A) Parent and Purchaser shall have waived the Financing Proceeds Condition, (B) all of the Offer Conditions other than the Financing Proceeds Condition have not been satisfied or waived (other than those conditions which that by their nature are to be satisfied at the Expiration Date, but subject to the satisfaction or waiver of such conditions) and (C) the Debt Financing has not capable of being satisfied)actually been received by Purchaser or Parent, Acquisition may extend and the lenders party to the Debt Commitment Letter have not definitively and irrevocably confirmed in writing to Parent and Purchaser that the Debt Financing in an amount sufficient (together with cash available to Parent) to consummate the Offer from time and the Merger will be available at the anticipated Acceptance Time on the terms and conditions set forth in the Debt Commitment Letter and subject only to time until December 31, 2000, without the consent satisfaction of the Company, for such amount Offer Conditions; and (z) if (A) the Financing Proceeds Condition has been satisfied or waived less than five (5) Business Days prior to the then-scheduled expiration of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to (including the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the then-scheduled expiration date of the Offer in one or more periods of not more than ten business days each Offer) and (but in no event later than December 31, 2000), if (iB) any all of the conditions set forth in Annex I shall not other Offer Conditions have been satisfied or waived at the then scheduled or extended expiration date of the OfferOffer (other than those conditions that by their nature are to be satisfied at the Expiration Date, but subject to the satisfaction or waiver of such conditions), then Purchaser and Parent shall have a one-time right to extend the Offer pursuant to this sentence and such extension shall be for a period of up to five (5) Business Days; provided, however, that in no event shall Purchaser (i) be required to extend the Offer beyond the earliest to occur of (A) the Outside Date and (B) the valid termination of this Agreement in compliance with Article VII or (ii) such condition is reasonably capable be permitted to extend the Offer beyond the Outside Date without the prior written consent of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject the Company. Notwithstanding anything herein to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoingcontrary, Acquisition mayPurchaser shall, without the written consent of the Company, (i) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff, any rule or regulation of the Securities and Exchange Commission (the "SEC") NASDAQ, or any other applicable Law, in each case, applicable to the Offer.
(d) Purchaser shall not terminate the Offer and (ii) if more than 80% but less than 90% prior to any scheduled Expiration Date without the prior written consent of the outstanding Shares shall have been validly tendered Company, except for a termination of this Agreement permitted in accordance with the terms of Section 7.1. In the event that this Agreement is terminated pursuant to Section 7.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within two (2) Business Days of such termination), irrevocably and unconditionally terminate the Offer as Offer, not acquire any Shares pursuant thereto, and cause any depositary acting on its behalf to promptly return in accordance with applicable Law all tendered Shares to the registered holders thereof.
(e) On the commencement date of the scheduled or extended expiration dateOffer, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause Purchaser and Parent shall (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file or cause to be filed with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) that will contain or incorporate by reference the related offer to purchase the Shares pursuant to the Offer, the form of the related letter of transmittal, the summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and together with all exhibits, amendments and supplements thereto, the “Offer Documents”); and including all exhibits thereto, the "Schedule TO"(ii) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, TO and related Offer Documents to be disseminated to holders of Shares in accordance with applicable federal securities Laws. The Company shall promptly furnish to Purchaser and Parent in writing all information concerning the Company and its stockholders that may be required by applicable Law to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.1(e). The Company and its counsel shall be given reasonable opportunity to Purchase review and all amendments or supplements thereto (which together constitute comment on the "Offer Documents") Documents prior to comply in all material respects the filing thereof with the Exchange Act SEC, and Purchaser and Parent shall give reasonable and good faith consideration to any comments made by the rules Company and regulations thereunder and other Applicable Lawsits counsel. Each of ParentPurchaser, Acquisition Parent and the Company agrees to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, respect or as otherwise required by applicable Law. Purchaser and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected (if applicable) to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Upon receipt of any written or oral comments by Purchaser, Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, or any request from the SEC or its staff for amendments or supplements to the Offer Documents, Purchaser and Parent agree to (i) promptly provide the Company and its counsel with a copy of any such written comments or requests (or a description of any such oral comments or requests); (ii) provide the Company and its counsel a reasonable opportunity to comment on any proposed response thereto, and to give reasonable and good faith consideration to any such comments made by the Company and its counsel; (iii) provide the Company and its counsel an opportunity to participate with Purchaser, Parent or their counsel in any material discussions or meetings with the SEC or its staff; and (iv) provide the Company with copies of any written comments or responses submitted by Purchaser and Parent in response thereto.
(f) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, merger, issuer tender offer, exchange of shares or other like change with respect to Company Common Stock occurring on or after receipt the date hereof and prior to Purchaser’s acceptance for payment of, and payment for, Company Common Stock tendered in the Offer, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action and shall as so adjusted from and after the date of such commentsevent, be the Offer Price; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to the Company Common Stock that is prohibited by the terms of this Agreement.
(g) Subject in all respects to the other terms and conditions of this Agreement and the Offer Conditions, Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to purchase any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as reasonably practicable after the public announcement of the terms of this Agreement, but (and in any event no event later than one week October 14, 2008) after the date hereof, Acquisition the Purchaser shall (and Parent shall cause Acquisition the Purchaser to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act")”), an offer (the "Offer") for Offer to purchase all of the outstanding shares of common stock, par value $.01 per share, of Shares at the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be , subject only to to: (i) there being validly tendered in the condition Offer and not properly withdrawn prior to the Expiration Date that at least two-thirds number of the Shares on a fully- diluted basiswhich, together with the number of Shares (if any) then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of the Shares then owned by Parent and/or Acquisition, outstanding (including for purposes determined on a fully diluted basis) and no less than a majority of such calculation all Shares issuable upon exercise the voting power of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in the election of directors or any upon the adoption of its subsidiaries) be validly tendered this Agreement and approval of the Merger (collectively, the "“Minimum Condition"”), ; and (ii) the satisfaction or, to the extent waivable by Parent or the Purchaser, waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I heretoI.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction or, to the extent waivable by Parent or the Purchaser, waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex I, the Purchaser shall (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after the Purchaser is legally permitted to do so under applicable Law. Acquisition The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e). In circumstances in which the stockholders of the Company do not have the right to seek remedies at law or equity, the obligations of Parent and the Purchaser under this Agreement are material to the Company’s execution of this Agreement and any failure by Parent or the Purchaser to comply with the terms of this Agreement shall enable the Company to seek all remedies available at law or equity to it and on behalf of the stockholders.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including without limitation the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and the Purchaser expressly reserves 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 previously approved by the Company in writing, the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend any of the other conditions and requirements to the Offer set forth in Annex I in a manner materially adverse to the holders of Shares, or (vi) extend the Offer in a manner other than in accordance with this Agreement.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight (New York City time) on the date that is the later of (i) 20 Business Days following the commencement of the Offer or (ii) 45 calendar days following the first public announcement of this Agreement by Parent (in either case, the “Initial Expiration Date”) or, if the Offer has been extended in accordance with this Agreement, at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including without limitation the Minimum Condition may and the other conditions and requirements set forth in Annex I) have not been satisfied or, to the extent waivable by the Parent or the Purchaser pursuant to this Agreement, waived by Parent or the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for successive periods of up to 20 Business Days each, the length of each such period to be amended determined by the Purchaser in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer beyond the Outside Date; provided, further, that the Purchaser shall not be required to extend the Offer after the Company delivers or is required to deliver to Parent a notice with respect to an Acquisition Proposal that has been received by the Company, the Company Subsidiaries, or any Company Representative, in accordance with Section 5.4(c), except to the extent that prior to the expiration of the Offer the Acquisition Proposal giving rise to such notice has been withdrawn or the Company Board has rejected the Acquisition Proposal giving rise to such notice and, in each case, the Company Board has reconfirmed the Company Board Recommendation and the withdrawal or rejection of such Acquisition Proposal, and the reconfirmation of the Company Board Recommendation, has been publicly announced by the Company. The “Outside Date” shall be December 31, 2008 (the “Initial Outside Date”); provided, however that if all of the conditions to the Offer (other than either or both of the HSR Condition or the Governmental Approval Condition, and regardless of whether the Minimum Condition is then satisfied) have been satisfied or, to the extent waivable by Parent or the Purchaser, waived only by Parent and the Purchaser, as of the Initial Outside Date, the Outside Date shall be March 31, 2009 (the “Extended Outside Date”). In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the “SEC”) or its staff.
(f) If necessary to obtain sufficient Shares to reach the Short Form Threshold (without regard to Shares issuable upon the exercise of the Top-Up Option or Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), the Purchaser may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (iiand in any event within 24 hours of such termination) no change may be made that changes terminate the form of consideration Offer and shall not acquire the Shares pursuant thereto. If the Offer is terminated by the Purchaser, or this Agreement is terminated prior to be paid, decreases the price per Share or the number purchase of Shares sought in the Offer, imposes conditions the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been purchased in the Offer to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the registered holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterthereof.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(ch) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the “Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisementDocuments”). Parent and Acquisition the Purchaser agree that they shall to cause the Schedule TOOffer Documents to be disseminated to holders of Shares, as and to the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with extent required by the Exchange Act Act. Parent and the rules and regulations thereunder and other Applicable Laws. Each of ParentPurchaser, Acquisition on the one hand, and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it for use in the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and Acquisition further the Purchaser agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide in writing the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 2 contracts
Sources: Merger Agreement (Lilly Eli & Co), Merger Agreement (Imclone Systems Inc)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in paragraphs (ii)(a) - (ii)(g) of Annex I hereto, then as promptly as reasonably practicable after the public announcement date hereof (and in any event within eight (8) business days of the terms date of this Agreement), but in no event later than one week after the date hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition toA) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), ) an offer (the "Offer") for to purchase any and all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Common Stock at a price for each per Share of $16.00equal to the Per Share Amount, net to the seller in cash cash, without interest and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the "Offer PriceDocuments") with the Securities and Exchange Commission (the "SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer Documents. The obligation of Acquisition to accept for payment and to pay for any Shares tendered Offer shall be subject only to (i) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the Expiration Date (as hereinafter defined) a number of Shares on a fully- diluted basisthat, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company Merger Sub or any other subsidiary of its subsidiariesParent, represents at least a majority of the Shares outstanding on a Fully-Diluted Basis (as hereinafter defined) be validly tendered (the "Minimum Condition"), ) and (ii) to the other conditions set forth in Annex I hereto. Acquisition Merger Sub expressly reserves the right to increase waive any of the conditions to the Offer Price or and to make any other changes change in the terms and of or conditions to the Offer, provided that without the prior written consent of the Offer; providedCompany, however, that (i) the Minimum Condition may not be amended or waived only with the prior written consent of the Company and waived, (ii) the condition to the Offer that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "▇▇▇ ▇▇▇") ▇▇ ▇▇▇er any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be waived, (iii) no change may be made that changes the form of consideration to be paid, decreases the price per Per Share Amount or the number of Shares sought in the Offer, Offer or imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date I and (iv) no other change may be made to any term of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is manner adverse to the holders of the Shares. Subject to satisfaction of Notwithstanding the conditions contained foregoing, except as otherwise provided in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfiedthis Section 1.01(a), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting Merger Sub shall have the right of Acquisition to extend the Offer pursuant Offer, provided that such extension does not extend beyond the later of (x) July 31, 2003 and (y) the date that is 30 days after the date that the Company has complied with its obligations under Section 6.03 (the "Outside Date") (i) from time to the immediately preceding sentencetime if, at the request of Companyscheduled or extended Expiration Date, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (SEC or the "SEC") staff thereof applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares or any period required by applicable law. The Offer shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable remain open until 12:00 midnight on the date that is twenty (20) business days after the commencement of the Offer (the "Expiration Date"), unless Merger Sub shall have extended the period of time for which the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements theretoopen pursuant to, and including all exhibits theretoin accordance with, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain terms of this Agreement or as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.be
Appears in 2 contracts
Sources: Merger Agreement (Elite Information Group Inc), Merger Agreement (Elite Information Group Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 7.1, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition but in any event within ten business days after the date of this Agreement, Merger Sub shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (together with the "rules and regulations promulgated thereunder, the “Exchange Act"”)), an offer () the "Offer") Offer for all of the outstanding shares of common stock, par value $.01 Shares for consideration per share, Share consisting of the Company Offer Price, subject to reduction only for applicable federal back-up withholding or stock transfer taxes payable by the sellers of such Shares. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(individually a "Share" b) As promptly as practicable on the later of (i) the earliest date as of which Merger Sub is permitted under applicable Laws to accept for payment Shares tendered pursuant to the Offer, and collectively(ii) the earliest date as of which each of the conditions set forth in Annex A hereto (the “Offer Conditions”) shall have been satisfied or waived, Merger Sub shall (and Purchaser shall cause Merger Sub to) accept for payment all Shares tendered pursuant to the Offer (and not validly withdrawn) (the date of acceptance for payment, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"“Acceptance Date”). The obligation of Acquisition Merger Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Agreement) shall be subject only to (i) the condition that at least two-thirds satisfaction or waiver of the Shares on a fully- diluted basisOffer Conditions (and shall not be subject to any other conditions). As promptly as is commercially and reasonably practicable after the Acceptance Date, together with Merger Sub shall pay for such Shares.
(c) Merger Sub expressly reserves the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior right to the Effective Time, but excluding any Shares held by the Company or waive any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right A, to increase the Offer Price or and to make any other changes in the terms and conditions of the Offer; provided, however, that Merger Sub shall not, and Purchaser shall cause Merger Sub not to, (i) decrease the Minimum Condition may be amended or waived only with the prior written consent of the Company and Offer Price, (ii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (iii) decrease the number of Shares sought in the Offer, imposes (iv) impose additional conditions to the Offer in addition to those set forth in Annex IOffer, extends the expiration date of (v) extend the Offer beyond the initial expiration date Expiration Date (except to the extent required by Section 1.1(d) hereof), (vi) purchase any Shares pursuant to the Offer that when added to Shares owned by Purchaser and its Affiliates would represent less than the Minimum Condition or (vii) amend any other term or condition of the Offer (except as provided in (b), below) or makes any other change which is manner adverse to the holders of the Shares. Subject to satisfaction , in each case without the prior written consent of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant Company (such consent to be authorized by the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterBoard or a duly authorized committee thereof).
(bd) The Unless extended as provided in this Agreement, the Offer shall initially be scheduled to expire on the date (the “Expiration Date”) that is 20 business days following (calculated as set forth in Rule 14d-1(g)(3) under the commencement thereofExchange Act) after the Offer Commencement Date. If, at a then-any scheduled expiration dateof the Offer, any of the conditions to the Offer have not been satisfied Merger Sub’s obligation to accept Shares for payment (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000including, without limitation, the consent of the CompanyMinimum Condition) shall not be satisfied or waived, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition Merger Sub shall, and Parent Purchaser shall cause Acquisition Merger Sub to, extend the Offer beyond the then applicable expiration date of thereof for a time period ending no later than the Offer Outside Date and reasonably necessary to permit such condition to be satisfied in one or more periods increments of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. each. Notwithstanding the foregoing, Acquisition Merger Sub may, without the consent of the Company, (i) extend the Offer for any period required by any rule rule, regulation or regulation of interpretation published by the United States Securities and Exchange Commission (“SEC”), or the "SEC") staff thereof, which is applicable to the Offer. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement) but only if this Agreement is validly terminated in accordance with Section 7 hereof.
(iie) if more than 80% If the Acceptance Date occurs but less than Merger Sub does not acquire at least 90% of the outstanding Shares shares of Common Stock then outstanding, Merger Sub shall, and Purchaser shall have been validly tendered pursuant to cause Merger Sub to, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period Exchange Act of not less than ten business days nor more than five 20 business days beyond days; provided that Merger Sub shall, and Purchaser shall cause Merger Sub to, accept immediately and pay promptly for all Shares tendered during the latest expiration date that would otherwise be permitted initial offering period and accept immediately and pay promptly for all Shares tendered during such subsequent offering period, in each case in accordance with Rule 14d-11 under clause (i) of this sentencethe Exchange Act.
(cf) As soon as practicable on the date On the Offer is commencedCommencement Date, Parent Purchaser and Acquisition Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisementall other ancillary Offer documents (collectively, together with all amendments and supplements thereto, the “Offer Documents”). Parent Purchaser and Acquisition agree that they Merger Sub shall cause the Schedule TOOffer Documents to be made available to the holders of the Shares as and to the extent required by applicable federal securities laws. Purchaser and Merger Sub, on the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees will promptly to correct any information respectively provided by it them for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to Merger Sub will cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated made available to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents prior to the filing thereof Purchase before they are filed with the SEC. Parent In addition, Purchaser and Acquisition Merger Sub agree to provide in writing the Company and its counsel with any comments Parentcomments, Acquisition whether written or oral, that Purchaser or Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and to consult with the Company and its counsel prior to responding to any such comments.
(g) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by Merger Sub for the Shares.
Appears in 2 contracts
Sources: Merger Agreement (International Electronics Inc), Merger Agreement (Linear LLC)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.1 and none of the conditions events set forth in paragraph (2)(iii) of Annex I heretoshall exist or have occurred and be continuing, as promptly as reasonably practicable (and in any event within 10 Business Days) after the public announcement of the terms date of this Agreement, but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act Act) the Offer to purchase for cash all outstanding Shares at the Offer Price.
(b) Subject to the terms and conditions of 1934 this Agreement and the Offer, promptly after the latest of (i) the earliest date as of which Purchaser is permitted under applicable law to accept for payment Shares validly tendered and not withdrawn pursuant to the Offer, (ii) the earliest date as of which each of the conditions and requirements set forth in Annex I (the "Exchange Act"))“Offer Conditions”) has been satisfied, an offer or waived by Parent or Purchaser, and (iii) the "Offer"Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and pay for all of the outstanding shares of common stock, par value $.01 per share, of the Company Shares (individually a "Share" without interest) validly tendered and collectively, the "Shares") at a price for each Share of $16.00, net not withdrawn pursuant to the seller in cash (Offer that Purchaser becomes obligated to purchase pursuant to the "Offer Price")Offer. The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares (without interest) tendered and not withdrawn pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds satisfaction, or waiver by Parent or Purchaser, of each of the Shares on a fully- diluted basis, together with the Shares then owned Offer Conditions.
(c) The Offer shall be made by Parent and/or Acquisition, (including for purposes means of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior an offer to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered purchase (the "“Offer to Purchase”) that contains, among other things, the terms set forth in this Agreement, the Minimum Condition"), Condition and (ii) the other conditions and requirements set forth in Annex I hereto. Acquisition I. Parent and Purchaser expressly reserves reserve the right to (x) increase the Offer Price or and (y) to waive any Offer Conditions and make any other changes in to the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with unless otherwise provided by this Agreement, without the prior written consent of the Company and Company, neither Parent nor Purchaser shall (i) decrease the Offer Price, (ii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (iii) decrease the number of Shares sought to be purchased in the Offer, imposes (iv) impose additional conditions to the Offer Offer, (v) except as required by any Governmental Entity, amend or modify any terms in addition a manner adverse to those set forth in Annex Ithe holders of Shares, extends (vi) change or waive the Minimum Condition or (vii) extend or otherwise change the expiration date of the Offer beyond other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in accordance with the initial expiration terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement (within the meaning of Rule 14d-2 promulgated under the Exchange Act) of the Offer (except as provided the “Initial Expiration Date”) or, in (b), below) or makes any other change which is adverse to the holders of event the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, is referred to as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterthe “Expiration Date”).
(be) The Offer shall initially may be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer extended from time to time as follows:
(i) If, on or prior to any then scheduled Expiration Date, all of the Offer Conditions (including the Minimum Condition and all other Offer Conditions) shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, Purchaser shall (and Parent shall cause Purchaser to), at the request of the Company, extend the Offer for one or more successive periods of not more than 10 Business Days in order to permit the satisfaction of such conditions, each until December 31the earlier of (x) the termination of this Agreement pursuant to Section 8.1 and (y) (A) the date that is 180 days after commencement of the Offer (the “Initial Outside Date”) or (B) the date that is 270 days after commencement of the Offer in the event that the HSR Condition or the Governmental Approval Condition shall not have been satisfied, 2000or waived by Parent or Purchaser if permitted hereunder, by the Initial Outside Date (the “Extended Outside Date”), if any such extension of not more than 10 Business Days would otherwise end after the Initial Outside Date or the Extended Outside Date, as applicable;
(ii) Purchaser may, in its sole discretion, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in for one or more successive periods of not more than ten business days each (but in no event later than December 31, 2000)10 Business Days each, if (i) at any otherwise scheduled Expiration Date any of the conditions set forth in Annex I Offer Conditions shall have not have been satisfied satisfied, or waived at the scheduled by Parent or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and Purchaser if permitted hereunder; and
(iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) Purchaser shall extend the Offer for any period or periods required by any rule applicable law, rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "“SEC"”) applicable or its staff or Nasdaq or its staff.
(f) Purchaser may, in its sole discretion, provide for a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act. Subject to the Offer terms and conditions of this Agreement and the Offer, Purchaser shall (iiand Parent shall cause Purchaser to) if more than 80% but less than 90% of the outstanding accept for payment, and pay for, all Shares shall have been that are validly tendered and not withdrawn pursuant to the Offer as during any such “subsequent offering period” promptly after any such Shares are tendered during such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) terms of this sentenceSection 1.1(f).
(cg) As soon Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1 or as practicable on required by applicable law. In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and Parent shall cause Purchaser to) promptly terminate the Offer and shall not acquire any Shares pursuant to the Offer.
(h) On the date of the commencement of the Offer is commenced(within the meaning of Rule 14d-2 promulgated under the Exchange Act), Purchaser shall (and Parent and Acquisition shall cause Purchaser to) file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to will comply in all material respects with the Exchange Act and the rules and regulations thereunder provisions of all applicable Federal and other Applicable securities Laws. The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Parent and Purchaser shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of the Shares, in each case as and to the extent required by the Exchange Act. Each of Parent, Acquisition Purchaser and the Company agrees shall correct promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and respect or as otherwise required by applicable law. Parent and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser shall provide in writing the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review any such written responses and shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Parent and Purchaser shall use their reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of the Company Recommendation, as such Company Recommendation may be amended and until such Company Recommendation may be withdrawn, in each case as permitted by this Agreement. If Purchaser terminates or withdraws the Offer, or this Agreement is terminated prior to the purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof.
(i) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination or other like change with respect to Common Stock occurring on or after the date of this Agreement and prior to the time Purchaser accepts for payment and pays for any Shares tendered and not withdrawn pursuant to the Offer (the “Acceptance Time”), if any.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Article VIII, as promptly as reasonably practicable after the public announcement of the terms of this Agreement(and in any event on or before January 8, but in no event later than one week 2014) after the date hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act Act, the Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of 1934 the Offer, and the obligation of Acquisition Sub to accept for payment and pay for any shares of Common Stock tendered pursuant to the Offer, shall be subject only to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Common Stock (if any) then owned by Parent or Acquisition Sub represents a majority of the shares of Common Stock then outstanding (determined on a fully diluted basis) (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the "Exchange Act"“Termination Condition”)); and (iii) the satisfaction, an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per shareor waiver by Parent or Acquisition Sub, of the Company other conditions and requirements set forth in Annex I (individually a "Share" together with the Minimum Condition and collectivelythe Termination Condition, the "Shares"“Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue pursuant to any then outstanding warrants, options, benefit plans or obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the extent so exercisable, convertible or exchangeable prior to consummation of the Merger or exercisable, convertible or exchangeable as a result of the consummation of the Offer or the Merger.
(b) at a price Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Acquisition Sub, of the other Offer Conditions, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer as promptly as possible on or after the applicable Expiration Date. The Offer Price payable in respect of each Share share of $16.00, Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash cash, without interest.
(c) The Offer shall be made by means of an offer to purchase (the "“Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (iPurchase”) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in describes the terms and conditions of the Offer in accordance with this Agreement, including the Offer Conditions. Unless previously approved by the Company in writing, Parent and Acquisition Sub shall not: (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) change the number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term that is adverse to the holders of Common Stock, (vi) extend the expiration of the Offer except as required or permitted by this Section 2.1, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If as of any then scheduled Expiration Date, (i) any Offer Condition has not been satisfied or, to the extent waivable by the Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the satisfaction of the Offer Conditions; and (ii) if (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and the Closing and (B) Parent and Acquisition Sub acknowledge in writing that the Company may terminate the Agreement pursuant to Section 8.1(i)(ii) and receive the Parent Termination Fee, Acquisition Sub may extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the funding of the Debt Financing; provided, however, that that, subject to Section 8.1(b), Acquisition Sub shall not be required to extend the Offer beyond June 16, 2014 (ithe “Outside Date”) and shall not extend the Minimum Condition may Offer beyond the Outside Date without the Company’s consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NYSE; provided, however, that, subject to Section 8.1(b), Acquisition Sub shall not be amended or waived only with required to extend the Offer beyond the Outside Date and shall not extend the Offer beyond the Outside Date without the Company’s consent.
(f) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company and (ii) no change may be made that changes the form of consideration Company, except if this Agreement is terminated pursuant to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions Article VIII. If this Agreement is terminated pursuant to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex IArticle VIII, Acquisition Sub shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition Sub to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to promptly terminate the Offer and (ii) if more than 80% but less than 90% shall not acquire the shares of Common Stock pursuant thereto. If the outstanding Shares shall have been validly tendered pursuant Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the Offer as Acceptance Time, Acquisition Sub shall promptly return, and shall cause any depositary acting on behalf of the scheduled or extended expiration dateAcquisition Sub to return, extend in accordance with applicable Law, all tendered shares of Common Stock that have not then been purchased in the Offer for an aggregate period of not more than five business days beyond to the latest expiration date that would otherwise be permitted under clause (i) of this sentenceregistered holders thereof.
(cg) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include as exhibits (without limitation), the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, and including all exhibits thereto, being referred to herein as the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the “Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisementDocuments”). Parent and Acquisition Sub agree that they shall to cause the Schedule TOOffer Documents to be disseminated to holders of shares of Common Stock, as and to the Offer to Purchase and extent required by all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with applicable Laws, including the Exchange Act Act. Parent and Acquisition Sub, on the one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees agree to promptly to correct any information provided by it for use in the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and Acquisition further Sub agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesshares of Common Stock, in each case as and to the extent required by all applicable federal securities lawsLaws, including the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Acquisition Sub shall provide in writing the Company and its counsel promptly with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any proposed written or oral responses to the Schedule TO and Offer Documents and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and to participate in any substantive telephonic communications with the staff of the SEC related thereto.
Appears in 2 contracts
Sources: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and no event shall have occurred that, had the Offer referred and no circumstance shall exist which would result in a failure to below been commenced, would give rise to a right to terminate the Offer pursuant to satisfy any of the conditions or events set forth in Annex I heretoA hereto (the "Offer Conditions"), Purchaser shall, as promptly soon as reasonably practicable after the date hereof (and in any event within five business days from the date of public announcement of the terms of this Agreement, but in no event later than one week after the date execution hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), commence an offer (the "Offer") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock, par value $.01 .14 2/3 per shareshare (referred to herein as either the "Shares" or "Company Common Stock"), of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.0080.00 per Share, net to the seller in cash (the "Offer Price")cash. The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds satisfaction or waiver by Purchaser of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I heretoOffer Conditions. Acquisition Purchaser expressly reserves the right right, in its sole discretion, to increase waive any such condition (other than the Minimum Condition as defined in the Offer Price or to Conditions) and make any other changes in the terms and or conditions of the Offer; provided, howeverprovided that, that (i) the Minimum Condition may be amended or waived only with the prior written consent of unless previously approved by the Company and (ii) in writing, no change may be made that which decreases the price per Share payable in the Offer, changes the form of consideration to be paidpayable in the Offer (other than by adding consideration), decreases reduces the price per Share or the maximum number of Shares sought to be purchased in the Offer, imposes conditions to modify or amend the Offer Conditions or otherwise amend the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of the Shares. Subject Purchaser covenants and agrees that, subject to satisfaction the terms and conditions of this Agreement, including but not limited to the conditions contained in Annex IOffer Conditions, Acquisition shall it will accept for payment all and pay for Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law law; provided that, Purchaser shall have the right, in its sole discretion, to extend the Offer for up to five business days, notwithstanding the prior satisfaction of the Offer, in order to attempt to satisfy the requirements of Section 253 of the DGCL. It is agreed that the Offer Conditions are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to any such condition (except for any action or inaction by Purchaser or Parent constituting a breach of this Agreement) or, except with respect to the Minimum Condition, may be waived by Purchaser, in whole or in part at any time and from time to time, in its sole discretion. Purchaser further agrees that the Holding Co. Merger and the Woodbank Merger will not be closed until the Offer Conditions are otherwise satisfied or waived by Purchaser, and immediately prior to the purchase of the Shares by Purchaser pursuant to the Offer. Purchaser agrees that, so long as this Agreement is in effect and all of the Offer Conditions are satisfied other than the conditions to the Offer set forth in clause (h) of Annex A and the Minimum Condition, at the request of the Company the Purchaser, at its option, shall pay for extend the Offer until the earlier of (1) such Shares promptly thereaftertime as such conditions are satisfied or waived, and (2) the date chosen by the Company which shall not be later than (x) the Outside Date (as defined herein), (y) the earliest date on which the Company reasonably believes such condition will be satisfied; provided, that the Company may request further extensions up until the Outside Date if the Offer Conditions set forth in clause (h) and the Minimum Condition are still the only Offer Condition not satisfied unless this Agreement has been terminated pursuant to the provisions of Article VIII.
(b) The As soon as reasonably practicable on the date the Offer is commenced, Purchaser shall initially be scheduled to expire 20 business days following file a Tender Offer Statement on Schedule 14D-1 (the commencement thereof. If, at a then-scheduled expiration date, the conditions "Schedule 14D-1") with respect to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer). The Schedule TO 14D-1 shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the (which Schedule TO14D-1, the Offer to Purchase and all other documents, together with any supplements or amendments or supplements thereto (which together constitute thereto, are referred to herein collectively as the "Offer Documents") ). Parent and Purchaser agree that the Company and its counsel shall be given an opportunity to comply in all material respects review the Schedule 14D-1 before it is filed with the Exchange Act and the rules and regulations thereunder and other Applicable LawsSEC. Each of Parent, Acquisition Purchaser and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Dillard Department Stores Inc), Merger Agreement (Mercantile Stores Co Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 7.1 and none of the conditions events set forth in Annex I heretohereto shall have occurred and be continuing (and shall not have been waived by the Acquisition Sub), as promptly as reasonably practicable then, within five (5) Business Days after the public announcement of the terms execution of this Agreement, but in no event later than one week after the date hereof, Acquisition Sub shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act"))) the Offer to purchase for cash all Shares at the Offer Price, an offer subject to (A) there being validly tendered and not withdrawn prior to the "Offer") for all expiration of the outstanding shares Offer that number of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basiswhich, together with the Shares purchasable under the Stock Purchase Agreement and the Shares then owned by Parent and/or Acquisitionor Acquisition Sub on the date of this Agreement, represents at least seventy-five percent (including for purposes 75%) of such calculation all the Shares issuable upon outstanding on a fully-diluted basis, assuming the exercise of all vested options, warrants and unvested Company Stock Options that vest prior to rights with exercise prices of less than $1.60 per share and convertible securities outstanding on the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered Expiration Date (the "Minimum Condition"), and (iiB) the satisfaction or waiver of the other conditions set forth in Annex I heretohereto (the Minimum Condition, together with the conditions set forth in Annex I, collectively, the "Offer Conditions"); provided, however, that in the event that the failure of any Offer Condition to be satisfied was caused solely by any material breach by Parent or Acquisition Sub of this Agreement and such failure has been waived by the Company, Acquisition Sub shall be obligated to accept for payment and pay for Shares tendered pursuant to the Offer.
(b) Subject to the prior satisfaction or waiver by Parent or Acquisition Sub of the Offer Conditions, Acquisition Sub shall consummate the Offer in accordance with its terms and to accept for payment and pay for all Shares tendered pursuant to the Offer as soon as reasonably practicable after Acquisition Sub is legally permitted to do so under applicable law. The obligations of Acquisition Sub to commence the Offer and accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Offer Conditions. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that is subject to the terms set forth in this Agreement, including the Offer Conditions and shall reflect, as appropriate, the other terms set forth in this Agreement. If, on the initial scheduled expiration date of the Offer, which shall be no earlier than twenty (20) Business Days after the date the Offer is commenced, all conditions to the Offer will not have been satisfied or waived, Acquisition Sub may, from time to time, extend the expiration date or terminate the Offer. Parent and Acquisition Sub expressly reserves reserve the right to waive any Offer Condition, to increase the Offer Price or and to make any other changes in the terms and conditions of the Offer; provided, howeverthat, that (i) unless one or more of the Minimum Condition may be amended or waived only with conditions to the Offer and the Merger shall not have been met, then, without the prior written consent of the Company and (ii) no Company, Acquisition Sub shall not decrease the Offer Price, change may be made that changes the form of consideration to be paidpayable in the Offer (other than by adding consideration), decreases the price per Share or decrease the number of Shares sought in the Offer, imposes amend or waive the Minimum Condition to less than a majority of the Shares outstanding on Expiration Date, impose additional conditions to the Offer in addition to those set forth in Annex IOffer, extends the expiration date of the Offer beyond the initial expiration date of extend the Offer (except as provided set forth below) beyond the date that is twenty (20) Business Days after commencement of the Offer or the last day of the last extension (in (baccordance with this Section 1.1), below) if any, of the Offer, whichever is later (the "Expiration Date"), or makes amend any other change which is condition of the Offer in any manner materially adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I; provided, Acquisition shall accept for payment however, that (x) if on any then scheduled Expiration Date, all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoingwaived, Acquisition Sub may, without the consent of the Companyfrom time to time, (i) in its sole discretion, extend or further extend the Offer for any period required one or more periods as Acquisition Sub may determine until the earlier of (1) the date on which all Offer Conditions shall have been satisfied or waived or (2) the Termination Date, and if on the then scheduled Expiration Date, there have not been tendered (along with Shares then owned by any rule Parent or regulation of Acquisition Sub or purchasable under the Securities and Exchange Commission (the "SEC"Stock Purchase Agreement) applicable to the Offer and (ii) if more than 80% but less than at least 90% of the outstanding Shares shall have been validly tendered pursuant to on a fully diluted basis, assuming the exercise of all options, warrants and rights with exercise prices of less than $1.60 per share and convertible securities outstanding on the Expiration Date, Acquisition Sub may, in its sole discretion and notwithstanding the prior satisfaction of the Offer as of the scheduled or extended expiration dateConditions, extend the Offer on one or more occasions for an aggregate period of not more than five business days beyond 10 Business Days, provided that during such extension or extensions Acquisition Sub shall waive the latest expiration date that would otherwise be permitted Offer Conditions other than the Minimum Condition. In addition, Acquisition Sub may, in its sole discretion, provide a "subsequent offering period" in accordance with Rule 14d-11 under clause (i) the Exchange Act. In addition, Acquisition Sub may increase the Offer Price and extend the Offer to the extent required by any rule, regulation, interpretation or position of this sentencethe SEC or the staff thereof or any period required by applicable law, in each case in its sole discretion and without the Company's consent.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition Sub shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act ("Regulation M-A"), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer). The Schedule TO shall contain include the summary term sheet required under Regulation M-A and, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "Offer Documents") ). Parent and Acquisition Sub agree to comply in take all material respects steps reasonably necessary to cause the Offer Documents to be filed with the Exchange Act SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Acquisition Sub, on the one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and respect or as otherwise required by law. Acquisition Sub further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof Schedule TO before it is filed with the SEC. In addition, Parent and Acquisition Sub agree to provide in writing the Company and its counsel with any comments comments, whether written or oral, that Parent, Acquisition Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentscomments by Parent or Acquisition Sub, as the case may be, and any written or oral responses thereto.
(d) On the terms and subject to the prior satisfaction or waiver of the Offer Conditions, Parent shall provide or cause to be provided to Acquisition Sub, and deposited with the Paying Agent referred to in Section 2.2 on a timely basis, funds necessary to accept for payment, and to pay for, any Shares that Parent becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen terminated in accordance with Section 8.1, had and subject to compliance in all material respects by the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth Company with its covenants in Annex I heretothis Section 1.1 and Section 1.2, as promptly as reasonably practicable after the public announcement of the terms of this Agreementpracticable, but and in no any event later than one week within ten (10) business days after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)), an offer () the "Offer") Offer to purchase for cash all of Shares at the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be , subject only to (i) there being validly tendered in the condition that at least two-thirds Offer (in the aggregate) and not withdrawn prior to the expiration of the Offer that number of Shares on a fully- diluted basiswhich, together with the Shares then beneficially owned by Parent and/or Acquisitionor its Subsidiaries, (including for purposes represents at least a majority of such calculation all the Shares issuable upon exercise outstanding on a fully diluted basis and no less than a majority of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or any upon the approval of its subsidiaries) be validly tendered this Agreement, in each case on a fully diluted basis (collectively, the "“Minimum Condition"), ”) and (ii) the satisfaction or waiver of the other conditions and requirements set forth in Annex I hereto. Acquisition expressly reserves I. Subject to the right to increase prior satisfaction of the Minimum Condition and the prior satisfaction or waiver by Parent or Purchaser of the other conditions and requirements set forth in Annex I, Purchaser shall consummate the Offer Price or to make any other changes in the accordance with its terms and conditions of accept for payment and pay for all Shares tendered pursuant to the OfferOffer as soon as practicable after Purchaser is legally permitted to do so under applicable law; provided, however, that the initial expiration date of the Offer shall be the date that is twenty (i20) business days following the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition may be amended or waived only with and the prior written consent of the Company other conditions and (ii) no change may requirements set forth in Annex I. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that changes contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. Neither Parent nor Purchaser may waive the Minimum Condition, decrease the Offer Price, change the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes reduce the maximum number of Shares to be purchased in the Offer or impose conditions to the Offer in addition to those set forth in Annex II without the prior written consent of the Company. Notwithstanding the foregoing, extends the (A) if, as of any scheduled expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b)Offer, below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer shall not have not been satisfied (other than conditions which are not capable of being satisfied)or waived, Acquisition may extend the Offer Purchaser may, from time to time until December 31time, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition toin its sole discretion, extend the expiration date of the Offer for such period (not to exceed ten (10) business days on any single occasion) as Purchaser may determine, to a date that is no later than March 31, 2006, or such later date which is no later than the third (3rd) business day following the latest of (1) the date on which Parent’s and Purchaser’s rights of negotiation expire under Section 8.1(f), (2) any Recommendation Deadline and (3) the twentieth (20th) business day following receipt by Parent or Purchaser of a notice pursuant to Section 8.1(b)(ii)(B); provided, that the failure of the Offer to be consummated, at the time of such extension, shall not (other than in one circumstances described in clause (3)) be a result of Parent or more periods Purchaser having failed to comply in any material respect with its covenants or agreements contained in this Agreement and (B) if applicable, Purchaser shall extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act of not less than three (3) or more than ten (10) business days each (but in no event later than December 31, 2000)days, if (i) any necessary, in order to meet the objective that there be validly tendered, in accordance with the terms of the conditions set forth in Annex I shall Offer, prior to the expiration of such subsequent offering period, and not have been satisfied or waived withdrawn a number of Shares which, together with Shares then beneficially owned by Parent, Purchaser and/or any other wholly-owned Subsidiary of Parent represents at least 90% of the then outstanding Shares on a fully diluted basis and (C) if, as of any scheduled or extended expiration date of the Offer, any of the events described in paragraphs (c), (d) or
(e) of Annex I has occurred and is continuing, then, at the request of the Company (received prior to the then scheduled expiration date of the Offer), Purchaser shall extend the Offer, until 5:00 p.m. New York City time on the date that is the later of (1) the date Parent would otherwise be entitled to terminate this Agreement pursuant to Section 8.1(b)(ii) or Section 8.1(b)(iii), as applicable, and (2) the third (3rd) business day following the date on which the matters which gave rise to the events described in paragraphs (c), (d) or (e) of Annex I have been cured or waived by Purchaser such that the conditions in Annex I are then satisfied or waived (it being understood that Purchaser may effect such extension through a series of extensions of such duration(s) as Purchaser may determine); provided, that the Company shall not be entitled to require Parent to extend the Offer pursuant to this clause (C) on more than one occasion.
(i) If (A) the Company has not delivered a Notice of Acquisition Proposal, (B) the failure to achieve the Minimum Condition is not a result of the Company having failed to comply in any material respect with any of its covenants and agreements contained in this Agreement and (C) the conditions and requirements of Annex I (other than the Minimum Condition) have been satisfied or, if not then satisfied, are reasonably capable of being satisfied before March 31, 2006, then, if at any scheduled expiration date of the Offer, the Minimum Condition shall not have been satisfied, at the request of the Company (received from time to time prior to the then scheduled expiration date of the Offer and confirmed in writing), Purchaser shall extend the Offer to a date requested by the Company (but no later than five (5) business days beyond the then scheduled expiration date of the Offer on any single occasion); provided, that in no event shall Purchaser be required to extend the expiration date of the Offer to any date later than March 31, 2006 pursuant to this Section 1.1(b)(i).
(ii) If (A) the Company delivers a Notice of Acquisition Proposal to Parent and (B) the Company provides Parent with a written request (a “Request”) that Purchaser extend the expiration date of the Offer (which Request may or may not be included in, and may be delivered later than, the Notice of Acquisition Proposal), then Purchaser shall extend the Offer, to such condition date as is necessary to assure that the Offer does not expire until fifteen (15) business days (such date as it may be extended pursuant to this Section 1.1(b)(ii), the “Recommendation Deadline”) from the date the Company gives (or gave) such Notice of Acquisition Proposal; provided, that (1) the Company may not deliver a Request on more than one occasion; and (2) if the Request was delivered on or prior to the twentieth (20th) business day following the date of this Agreement and, during the four (4) business day period ending on (and including) the date on which the Recommendation Deadline occurs, the Company delivers to Parent a Notice of Acquisition Proposal relating to an Acquisition Proposal from a Person or group that does not include any Person participating (other than solely as a source of debt financing) in the Acquisition Proposal as to which the prior Notice of Acquisition Proposal relates, then Purchaser shall, upon the request of the Company, extend the expiration date of the Offer to such date as is necessary to assure that the Offer does not expire until the fifth (5th) business day following receipt of such second Notice of Acquisition Proposal and the Recommendation Deadline shall automatically be extended to such fifth (5th) business day.
(iii) Parent and Purchaser further agree that (A) if at any one or more scheduled expiration dates of the Offer, any of the Regulatory Conditions have not been satisfied (or such conditions have been satisfied and the date of such satisfaction is after the third (3rd) business day preceding the date of expiration of the Offer (an “Abbreviated Expiration”)), but at such scheduled expiration date all of the other conditions to the Offer set forth in Annex I (other than the Minimum Condition) shall then be satisfied, or if not then satisfied, are either (1) reasonably capable of being satisfied or (2) unsatisfied (or not reasonably capable of being satisfied), and (iii) as a result of a breach of this Agreement by Parent or Purchaser, then, so long as the failure of the Regulatory Conditions to be satisfied shall not be a result of a breach by the Company is in material compliance with all of its covenants in obligations under this Agreement, subject at the request of the Company (received prior to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent then-scheduled expiration date of the CompanyOffer and confirmed in writing), (i) Purchaser shall extend the Offer for expiration date from time to time, to a date that is no later than March 31, 2006 and (B) if at any period required by any rule one or regulation more scheduled expiration dates of the Securities and Exchange Commission Offer after March 31, 2006, any of the Antitrust Conditions has not been satisfied (or there has been an Abbreviated Expiration with respect to the "SEC") applicable Antitrust Conditions), but at such scheduled expiration date all of the other conditions to the Offer set forth in Annex I (other than the Minimum Condition) shall then be satisfied, or if not then satisfied, are either (1) reasonably capable of being satisfied or (2) unsatisfied (or not reasonably capable of being satisfied), as a result of a breach of this Agreement by Parent or Purchaser, then, so long as the failure of the Antitrust Conditions to be satisfied shall not be a result of a breach by the Company of its obligations under this Agreement, at the request of the Company (received prior to the then-scheduled expiration date of the Offer and confirmed in writing), Purchaser shall extend the expiration date from time to time, to a date that is no later than September 14, 2006; provided, that in the case of clause (A) and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (iB) of this sentence, Purchaser shall not be required to extend the Offer by more than ten (10) business days on any single occasion or, in the case of an extension due to an Abbreviated Expiration, three (3) business days following the Abbreviated Expiration.
(iv) Without limiting the right of Parent and Purchaser to extend the Offer pursuant to Section 1.1(a), if at any one or more scheduled expiration dates of the Offer on or after March 31, 2006, any of the Antitrust Conditions has not been satisfied or waived (or there has been an Abbreviated Expiration with respect to the Antitrust Conditions), but on such date all of the other conditions to the Offer set forth in Annex I (other than the Minimum Condition) shall then be satisfied or waived, or if not then satisfied, are either (A) reasonably capable of being satisfied or (B) unsatisfied (or not reasonably capable of being satisfied) as a result of a breach of this Agreement by the Company or a failure of the condition set forth in clause (d) of Annex I, then, so long as the failure of the Antitrust Conditions to be satisfied shall not be a result of a breach by Parent or Purchaser of its obligations under this Agreement, Parent and Purchaser may, on one or more occasions, extend the expiration date of the Offer to a date that is no later than September 14, 2006; provided that Purchaser shall not extend the expiration date by more than ten (10) business days on any single occasion (or, in the case of an extension due to an Abbreviated Expiration, three (3) business days following the Abbreviated Expiration).
(v) Purchaser may (A) increase the Offer Price and extend the Offer to the extent required by applicable law in connection with such price increase and (B) subject to prior consultation with the Company, extend the expiration date of the Offer to the extent otherwise required by applicable law, in each case in their reasonable discretion and without the Company’s consent. Purchaser shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the written consent of the Company except in the event that this Agreement is terminated pursuant to Section 8.1.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition Purchaser shall file with the SEC Securities and Exchange Commission (the “SEC”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "“Schedule TO") with respect to the Offer”). The Schedule TO shall contain include the summary term sheet required under Regulation M-A and, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "“Offer Documents") ”). Parent and Purchaser agree to comply in take all material respects steps necessary to cause the Offer Documents to be filed with the Exchange Act SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser, on the one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees agree to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and respect or as otherwise required by applicable law. Parent and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser shall provide in writing the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, Parent and Purchaser shall promptly return, and shall cause any depository or paying agent, including the Paying Agent, acting on behalf of Parent and Purchaser, to return all tendered Shares to the registered holders thereof.
Appears in 2 contracts
Sources: Merger Agreement (Koch Industries Inc), Merger Agreement (Georgia Pacific Corp)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred that would result in a failure to below been commenced, would give rise to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the date hereof, but in no event later than five business days following the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition Merger Subsidiary shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for to purchase all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Shares at a price for each Share of $16.0021.00 per Share, net to the seller in cash (the "Offer Price")cash. The obligation of Acquisition to accept for payment and to pay for any Shares tendered Offer shall be subject only to (i) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the expiration date of the Offer and not withdrawn, a number of Shares on a fully- diluted basisthat, together with the Shares then owned by Parent and/or Acquisitionand its Subsidiaries, (including for purposes represents at least a majority of such calculation all the Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered outstanding on a fully-diluted basis (the "Minimum Condition"), ) and (ii) to the other conditions set forth in Annex I hereto. Acquisition Merger Subsidiary expressly reserves the right to increase waive the Minimum Condition or any of the other conditions to the Offer Price or and to make any other changes change in the terms and or conditions of the Offer; provided, however, provided that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, Offer or imposes conditions to the Offer which are broader than or in addition to those set forth in Annex I, extends the I. The initial scheduled expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31January 6, 2000. Notwithstanding the foregoing, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting Merger Subsidiary shall have the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived; provided that if any of the conditions to the Offer is not satisfied or waived on any scheduled expiration date of the Offer, Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied, for one additional period of 20 business days, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (SEC or the "SEC") staff thereof applicable to the Offer or any period required by applicable law and (iiiii) if on one or more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of occasions (all such occasions aggregating not more than five 10 business days days) beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with the Shares then owned by Parent, represents less than 90% of the outstanding Shares on a fully-diluted basis. Subject to the foregoing and to the terms and conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares properly tendered and not withdrawn pursuant to the Offer.
(cb) As soon as practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO14D-1") with respect to the Offer. The Schedule TO shall , which will contain as an exhibit or incorporate by reference the Offer offer to Purchase (or portions thereof) purchase and forms form of the related letter of transmittal and summary advertisement. Parent advertisement (such Schedule 14D-1 and Acquisition agree that they shall cause the Schedule TO, such documents included therein pursuant to which the Offer to Purchase and all will be made, together with any supplements or amendments or supplements thereto (which together constitute thereto, the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws). Each of Parent, Acquisition Merger Subsidiary and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and . Parent and Acquisition further Merger Subsidiary agree to take all steps necessary to cause the Schedule TO 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable an opportunity to review and comment on the Offer Documents (and any amendments thereto) prior to the filing thereof their being filed with the SECSEC or disseminated to the holders of Shares. Parent and Acquisition agree to Merger Subsidiary shall provide in writing the Company and its counsel with any comments or other communications that Parent, Acquisition Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentscomments or other communications.
Appears in 2 contracts
Sources: Merger Agreement (Charming Shoppes Inc), Merger Agreement (Catherines Stores Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred been terminated in accordance with Article VII and subject to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to then (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any the first Business Day after execution of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to LUKOIL Americas and the cure provisions Company shall issue mutually acceptable public announcements regarding the execution of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of this Agreement and file such announcement with the Securities and Exchange Commission (the "SEC") applicable to the Offer under cover of Schedule TO and (ii) if more Merger Sub shall, and LUKOIL Americas shall cause Merger Sub to, as soon as practicable, but in no event later than 80% but less than 90% seven Business Days from and after the date of such announcement, including the date of announcement as the first Business Day in accordance with Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer to purchase all of the outstanding Shares shall have been validly tendered pursuant to shares of Company Common Stock (other than as otherwise provided in this Agreement) at the Price Per Share. The initial expiration date of the Offer as of shall be the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on twentieth Business Day from and after the date the Offer is commenced, Parent and Acquisition shall file including the date of commencement as the first Business Day in accordance with Rule 14d-2 under the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect Exchange Act subject to the Offerextension as provided herein. The Schedule TO Offer shall contain as be made pursuant to an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto related Letter of Transmittal in form reasonably satisfactory to the Company and containing terms and conditions consistent with this Agreement. The obligation of Merger Sub to accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer in accordance with the terms of this Agreement shall be subject only to (which together constitute x) there being at least that number of shares of Company Common Stock representing a majority of the total issued and outstanding shares of Company Common Stock on a fully diluted basis (the "Offer DocumentsMinimum Shares") validly tendered and not withdrawn prior to comply the expiration of the Offer (the "Minimum Condition") and (y) the satisfaction of the other conditions set forth in all material respects with Annex A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; provided, however, that Merger Sub shall not waive the Exchange Act and Minimum Condition without the rules and regulations thereunder and other Applicable Lawsprior written consent of the Company. Each party agrees that no shares of Parent, Acquisition and the Company agrees promptly to correct any information provided Common Stock held by it for use or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub will not (i) decrease the Price Per Share payable in the Offer Documents if and Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the extent that such information shall have become false Offer or misleading change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer set forth in Annex A hereto or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (v) otherwise amend or add any term or condition of the Offer in any manner adverse in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt holders of such comments.shares of Company Common Stock; provided, however, that if on any scheduled
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Getty Petroleum Marketing Inc /Md/), Merger Agreement (Lukoil Americas Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article IX, and none of the events set forth in paragraphs (a), (b), (c) (to the extent performance is required theretofore), (e) and (f) of Annex I hereto shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoand be continuing, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but and in no any event later than one week within ten (10) Business Days after the date hereof, Acquisition MergerSub shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase all outstanding Company Common Shares at the Offer Price, and shall, upon commencement of the Offer but after affording the Company reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) and all other necessary documents with the Securities and Exchange Act of 1934 Commission (the "“SEC”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act")), an offer in each case in connection with the Offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "“Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"Documents”), and (ii) shall use its commercially reasonable efforts to consummate the other Offer, subject to the terms and conditions set forth in Annex I heretothereof. Acquisition expressly reserves the right Subject to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company this Agreement and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) satisfaction or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any waiver of the conditions set forth in Annex I shall not have been satisfied or waived at hereto (the scheduled or extended “Tender Offer Conditions”), MergerSub shall, as soon as possible after the expiration date of the OfferOffer (or, (ii) such condition is reasonably capable if applicable, the expiration of being satisfiedthe “initial offering period”), accept for payment, and pay for (iii) after giving effect to any required withholding Tax), all Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Common Shares shall have been validly tendered pursuant to the Offer as and not withdrawn (the first date of the scheduled or extended expiration date, extend the Offer acceptance for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits theretopayment, the "Schedule TO") with respect to the Offer“Acceptance Date”). The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition MergerSub and the Company agrees each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition further agree to MergerSub shall take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC and the other Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Sharesshares, in each case as and to the extent required by applicable federal Federal securities laws. The MergerSub shall provide the Company with (in writing, if written), and shall consult with the Company regarding, any comment (written or oral) that may be received by MergerSub or its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment on any such written and oral comments and proposed responses.
(b) Without the prior written consent of the Company, MergerSub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Common Shares. MergerSub may, in its sole and absolute discretion, increase the price per Company Common Share payable in the Offer without the consent of the Company. The initial expiration date of the Offer shall be the twentieth business day (as such commentsterm is defined in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act). MergerSub expressly reserves the right to waive any condition to the Offer (provided that any waiver of the Minimum Tender Condition shall require the prior written consent of the Company) or modify the terms of the Offer, subject to compliance with the Exchange Act and the first sentence of this subsection (b); provided that all such modifications to the terms of the Offer (other than a modification to increase the Offer Price or to waive a condition to the Offer) shall not, in the aggregate, reasonably be expected to delay the Acceptance Date by more than ten Business Days after the first public dissemination of notice of any such modification. Except as expressly provided in this subsection (b), MergerSub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for tendered shares. Notwithstanding the foregoing, MergerSub shall extend the Offer at any time, and from time to time: (1) if at the then-scheduled expiration date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; provided that any extension shall be in increments of not more than three Business Days (unless a longer period of time is agreed to by the Company in writing, such agreement not to be unreasonably withheld); (2) for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer; or (3) if all of the Tender Offer Conditions are satisfied or waived, and Company Common Shares have been accepted for payment, but the number of Company Common Shares acquired by MergerSub (together with other Company Common Shares owned of record by the Buyer Parties or any of their Affiliates) represent less than 90% of the votes entitled to be cast by the holders of the then outstanding number of Company Common Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to the number of votes such holders have relative to holders of Company Common Shares in accordance with the terms of the Company Series D Preferred Shares), voting together as a class, for an aggregate period of not more than ten Business Days (for all such extensions pursuant to this clause (3)) as a “subsequent offering period” (the “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any date on which the Offer is scheduled to expire, MergerSub will accept for payment and pay for all Company Common Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after such date.
Appears in 2 contracts
Sources: Merger Agreement (Centro Properties LTD), Merger Agreement (New Plan Excel Realty Trust Inc)
The Offer. (a) Provided that nothing As long as (i) this Agreement shall not have been terminated in accordance with its terms and (ii) none of the events or conditions described in Exhibit 1 shall exist or shall have occurred thatand be continuing, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoMerger Sub shall, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but and in no event later than one week ten (10) business days after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)), an ) a tender offer (the "Offer") for to purchase all of the outstanding shares of common stock, par value $.01 0.10 per shareshare (the “Common Stock”), of the Company (individually a "Share" and collectively, the "“Shares"”) at a price for each Share of $16.0037.00 per Share in cash, net to the seller but subject to any required withholding of Taxes, subject to the conditions set forth in cash Exhibit 1 and the requirements of this Agreement (such tender offer and price as they may from time to time be amended in accordance with this Agreement, the “Offer” and the “Offer Price”, respectively). Subject to Merger Sub’s right to extend the Offer as permitted by this Agreement, the Offer shall initially expire at midnight (New York City time) on the date which is 20 business days after the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act). If any of the conditions set forth in Exhibit 1 are not satisfied or waived by Merger Sub as of any then scheduled expiration time for the Offer, then Merger Sub may, from time to time in its sole discretion, extend the expiration time for the Offer in maximum increments of 10 business days to no later than June 30, 2006 (the "Offer Price"“Outside Date”). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to ; provided, however, that notwithstanding the foregoing (i) Merger Sub may extend the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned Offer for any period required by Parent and/or Acquisition, any applicable Law (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiariesas defined in Section 5.1(i)) be validly tendered (the "Minimum Condition"), and (ii) after acceptance for payment of Shares for a further period of time not to exceed twenty (20) business days by means of a subsequent offering period under Rule 14d-11 under the other conditions set forth in Annex I heretoExchange Act. Acquisition Merger Sub expressly reserves the right to increase the Offer Price amend or to make any other changes in modify the terms and conditions of the OfferOffer in its sole discretion; provided, however, that (i) notwithstanding the foregoing Merger Sub may not waive the Minimum Condition may be amended or waived only with Condition, impose any conditions other than those set forth in Exhibit 1, modify the prior written consent of conditions on Exhibit 1 (other than to waive any conditions on Exhibit 1 to the Company and (ii) no extent permitted by this Agreement), decrease the Offer Price below $37.00 per Share, change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or reduce the number of Shares sought in the Offer, imposes conditions to extend the Offer other than as permitted by the immediately preceding sentence or amend any terms of the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of Shares, in each case without the Shares. Subject to satisfaction prior written consent of the Company. On the terms and subject to the conditions contained in Annex Iof the Offer and this Agreement, Acquisition Merger Sub shall accept pay for payment all Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following practicable after the commencement thereofexpiration of the Offer. IfMerger Sub may, at a then-scheduled expiration dateany time, the conditions transfer or assign to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods Subsidiaries of not more than ten business days each (but in no event later than December 31, 2000), if (i) Parent the right to purchase all or any portion of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as Offer, but any such transfer or assignment shall not relieve Merger Sub of the scheduled its obligations under this Agreement or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree Whenever this Agreement requires Merger Sub to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesany action, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel such requirement shall be given reasonable opportunity deemed to review and comment include an undertaking on the Offer Documents prior part of Parent that it will cause Merger Sub to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of take such commentsaction.
Appears in 2 contracts
Sources: Merger Agreement (Lowrance Electronics Inc), Merger Agreement (Simrad Yachting As)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, that would give rise to a right to terminate this Agreement pursuant to Article 8, Buyer shall commence (within the meaning of Rule 14d-2 promulgated under the ▇▇▇▇ ▇▇▇) the Offer as promptly as reasonably practicable after the date of this Agreement but in no event later than the fifteenth (15th) Business Day following the date of this Agreement. The obligations of Buyer to accept for payment, and pay for, any Shares tendered pursuant to any the Offer shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex I hereto, (the “Offer Conditions”). The date on which Buyer commences the Offer is referred to as promptly as reasonably practicable after the public announcement “Offer Commencement Date.”
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is not prohibited by applicable Law) of the terms of this AgreementOffer Conditions, but in no event later than one week after the date hereof, Acquisition Buyer shall (and Parent shall cause Acquisition Buyer to) commence (i) at or as promptly as practicable following the Expiration Time (but in any event within two (2) Business Days thereafter), accept for payment (the meaning time of acceptance for payment, the “Acceptance Time”) and (ii) at or as promptly as practicable following the Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-2 14d-1(g)(3) promulgated under the Securities Exchange Act ▇▇▇▇ ▇▇▇) thereafter), pay (by delivery of 1934 funds to the depositary for the Offer) for, all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the "Exchange Act"“Closing”)), an offer (. The date on which the "Offer") for all Closing occurs is referred to in this Agreement as the “Closing Date.” The Offer Consideration payable in respect of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00pursuant to the preceding sentence shall be paid, net of any applicable Tax withholding with respect to the Offer Consideration pursuant to Section 2.10, to the seller in cash (cash, without interest, on the "Offer Price"). The obligation of Acquisition to accept for payment terms and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any conditions of its subsidiariesthis Agreement.
(c) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition Buyer expressly reserves the right to increase at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Price or Conditions and to make any other changes change in the terms and of or conditions of to the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company Company, Buyer shall not (and Parent shall cause Buyer to not):
(i) waive or change the Minimum Condition (except to the extent contemplated under paragraph (A) of Annex I);
(ii) no decrease the Offer Consideration;
(iii) change may be made that changes the form of consideration to be paid, decreases paid in the price per Share or Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend or otherwise change the Expiration Time, imposes conditions to except as otherwise provided in this Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(bd) The Offer shall initially be scheduled to expire 20 business days at 9:00 a.m. (New York City time), or at such other time as the Parties may mutually agree, on the date that is the later of (i) twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) following the commencement thereof. If, at a then-scheduled of the Offer and (ii) such date as is six (6) Business Days after the date of the EGM (such initial expiration datedate and time of the Offer, the conditions to “Initial Expiration Time”) or, if the Offer have not has been satisfied (other than conditions which are not capable of being satisfiedextended pursuant to and in accordance with Section 2.01(e), Acquisition the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article 8, Buyer may or shall, as applicable, extend the Offer from time to time until December 31as follows:
(i) for the minimum period as required by any rule, 2000regulation, without the consent interpretation or position of the SEC, the staff thereof, the NASDAQ or the NYSE as applicable to the Offer;
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (B) waived by Buyer (to the extent such waiver is not prohibited under this Agreement or applicable Law), then Buyer shall extend the Offer on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent, Buyer and the Company, for such amount ) in order to permit the satisfaction of time as is reasonably necessary to cause such Offer Conditions Condition(s); provided, however, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time, the Offer Condition set forth in paragraph (B) of Annex I is not reasonably likely to be satisfiedsatisfied within such ten (10) Business Day extension period, no such extension to exceed ten business days. Without limiting the right of Acquisition then Buyer shall be permitted to extend the Offer on such occasion for up to twenty (20) Business Days; provided, further, however, that (x) Buyer shall not be required to extend the Offer to a date later than the End Date (as the End Date may be extended pursuant to Section 8.01(b)(i)), (y) if the immediately preceding sentencesole then-unsatisfied Offer Condition is the Minimum Condition and the Pre-Wired Asset Sale Ruling has been obtained or it becomes apparent to Parent, at in its reasonable judgment, that the request of CompanyPre-Wired Asset Sale Ruling will not be received, Acquisition shall, and Parent Buyer shall cause Acquisition to, not be required to extend the expiration date Offer on more than two (2) occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Parent, Buyer and the Company) and (z) Buyer shall not be required to extend the Offer in one at any time that Parent or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition Buyer is reasonably capable of being satisfied, and permitted to terminate this Agreement; or
(iii) Company is to such other date and time as may be agreed in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of writing by Parent and the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article IX hereof and none of the conditions events set forth in Annex I heretohereto (the ‘‘Tender Offer Conditions’’) shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreementpracticable, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), ) an offer (the "Offer") for to purchase all of the outstanding shares of common stockSeller Common Stock at the Offer Price, par value $.01 per shareand shall, upon commencement of the Company (individually Offer but after affording the Seller a "Share" reasonable opportunity to review and collectivelycomment thereon, file a Schedule TO and all other necessary documents with the "Shares") at a price for each Share of $16.00, net to the seller in cash Securities and Exchange Commission (the "Offer Price"). The obligation of Acquisition to accept for payment ‘‘SEC’’) and to pay for any Shares tendered shall be subject only to (i) make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the condition that at least two-thirds of the Shares on a fully- diluted basisExchange Act, together in each case in connection with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered Offer (the "Minimum Condition"‘‘Offer Documents’’), and (ii) shall use its reasonable best efforts to consummate the other Offer, subject to the terms and conditions set forth in Annex I heretothereof. Acquisition expressly reserves the right Subject to increase the Offer Price or to make any other changes in the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and Parent shall cause it to, as soon as possible after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding Tax), all shares of Seller Common Stock validly tendered pursuant to the Offer and not withdrawn (the date of acceptance for payment, the ‘‘Acceptance Date’’).
(b) Without the prior written consent of the Seller, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of shares of Seller Common Stock. The Offer shall remain open until the date that is twenty (20) Business Days after the commencement of the Offer (the ‘‘Expiration Date’’), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable Laws, in which event the term ‘‘Expiration Date’’ shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that Purchaser may provide a subsequent offering period after the Expiration Date, in accordance with Rule 14d-ll under the Exchange Act. If at any Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Purchaser, Purchaser may extend the Offer from time to time; provided, however, that, on the scheduled Expiration Date of the Offer, (i) if the Minimum Condition may be amended waiting period under the HSR Act or waived only with under any material applicable foreign statutes or regulations applicable to Merger, including clearance under the prior written consent German Act against Restraints of the Company and (ii) no change may be made that changes the form of consideration to be paidCompetition, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not expired or been satisfied (other than conditions which are not capable of being satisfied)terminated, Acquisition may Purchaser shall extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date or termination under the HSR Act or any other material applicable foreign statutes or regulations , including clearance under the German Act against Restraints of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the OfferCompetition, (ii) if any of the Tender Offer Conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, Purchaser shall extend the Offer from time to time until the earlier of (A) five (5) Business Days after the time such condition is reasonably capable of being satisfied, or conditions shall no longer exist or (B) such time at which the matters described in such paragraphs (a) or (b) shall have become final and non-appealable; or (iii) Company is in material compliance with if all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Tender Offer for any period required by any rule or regulation of the Securities Conditions are satisfied and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 8050% but less than 90% of the outstanding Shares shall shares of Seller Common Stock on a fully diluted basis (as defined in Annex I) have been validly tendered and not withdrawn in the Offer, Purchaser shall have the right, in its sole discretion, but not the obligation to extend the Offer from time to time up to a maximum of ten (10) additional Business Days in the aggregate. Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Purchaser will accept for payment and pay for all shares of Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to after such Expiration Date of the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Digitas Inc), Merger Agreement (Digitas Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 8.1 hereof, as promptly as reasonably practicable (but in no event later than five business days after the public announcement of the terms execution of this Agreement), but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Securi- ties Exchange Act of 1934 1934, as amended (the "Exchange Act"))) the Offer at the ------------ Offer Price, an offer and subject to there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents at least a majority of the Shares outstanding on a fully diluted basis (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights and securities exercisable or convertible into Shares)(the "OfferMinimum ------- Condition") for and to the other conditions set forth in Annex I hereto, shall use --------- all reasonable efforts to consummate the Offer in accordance with its terms. The obligations of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested Minimum Condition and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to increase Purchase") subject to the Minimum Condition and the ----------------- other conditions set forth in Annex I hereto and reflecting, where appropriate, the other terms set forth in this Agreement. Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price Price, decrease the number of Shares sought, change the form of consideration payable in the Offer, propose additional conditions to the Offer or to make amend any other changes in the terms and conditions term of the OfferOffer in any manner adverse to the holders of the Shares without the written consent of the Company; provided, however, that (i) if on the Minimum Condition may be amended or waived only with the prior written consent initial scheduled expiration -------- ------- date of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes which shall be twenty (20) business days after the date the Offer is commenced, all conditions to the Offer will not have been satisfied or waived, Purchaser may, from time to time, in addition to those set forth in Annex Iits sole discretion, extends extend the expiration date of date. Purchaser shall, on the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse terms and subject to the holders of the Shares. Subject to prior satisfaction or waiver of the conditions contained in Annex Iof the Offer, Acquisition shall accept for payment all and pay for Shares validly tendered pursuant to the Offer as soon as it is legally permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. Iflaw; provided, at a then-scheduled expiration datehowever, the conditions that if, immediately prior to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration -------- ------- date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000as it may be extended), if (i) any of the conditions set forth in Annex I shall Shares tendered and not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable withdrawn pursuant to the Offer and (ii) if more than 80% but constitute less than 90% of the outstanding Shares shall have been validly tendered pursuant to Shares, the Offer as of the scheduled or extended expiration date, Purchaser may extend the Offer for an aggregate a period not to exceed five (5) business days, notwithstanding that all conditions to the Offer are satisfied as of not more than five business days beyond the latest such expiration date that would otherwise be permitted under clause (i) of this sentencethe Offer.
(cb) As soon as practicable on the date the Offer is commenced, Parent and Acquisition the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with --- respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO14D-l") with respect to the Offer). The Schedule TO shall contain 14D-1 will -------------- include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "Offer Documents") to ). The Offer Documents will comply in --------------- all material respects with the Exchange Act provisions of applicable Federal securities laws and, on the date filed with the SEC and on the date first published or sent to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information furnished by the Company, in writing expressly for inclusion in the Offer Documents. The information supplied by the Company expressly for inclusion in the Offer Documents and by Parent or the Purchaser, expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(c) Each of Parent and the rules Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and regulations thereunder to be disseminated to holders of the Shares, in each case as and other Applicable Lawsto the extent required by applicable federal securities laws. Each of Parent, Acquisition Parent and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, will promptly to (i) correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respectrespect and (ii) supplement the information provided by it specifically for use in the Schedule 14D-1 or the Offer Documents to include any information that shall become necessary in order to make the statements made therein, in light of the circumstances under which they were made, not mis- leading, and Parent and Acquisition the Purchaser further agree to will take all steps necessary to cause the Schedule TO 14D-1 or the Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given the reasonable opportunity to review and comment on the any Offer Documents prior to the filing thereof before they are filed with the SEC. In addition, Parent and Acquisition agree to the Purchaser will provide in writing the Company and its counsel with any comments or other communications, whether written or oral, Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or other communications.
Appears in 2 contracts
Sources: Merger Agreement (Saffron Acquisition Corp), Merger Agreement (Sun Coast Industries Inc /De/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen terminated in accordance with Article VI, had the Offer referred to below been commencedMerger Sub shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoand Parent shall cause Merger Sub to, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week the date that is ten (10) days after the date hereofof the initial public announcement of this Agreement, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)) the Offer.
(b) The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any Shares pursuant to the Offer is subject only to the satisfaction or waiver (as provided in Section 1.1(c), an offer ) of the conditions set forth in Annex A (the "Offer"“Offer Conditions”) (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement) and not to any other conditions. On the terms and subject to the Offer Conditions and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) as soon as practicable after the Expiration Date (provided that if the Expiration Date is the Outside Date, such acceptance shall occur on the Outside Date) and in compliance with applicable Law. The acceptance for payment of Shares pursuant to and subject to the conditions of the outstanding shares of common stockOffer is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, par value $.01 per shareor cause to be provided, to Merger Sub on the date of the Company (individually a "Share" Offer Closing funds necessary to purchase and collectively, the "Shares") at a price pay for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to pay the Offer and this Agreement.
(c) The Offer Conditions are for the sole benefit of Parent and Merger Sub, and Parent and Merger Sub may waive, in whole or in part, any Shares tendered shall Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Minimum Condition, which may be subject waived by Parent and Merger Sub only to (i) with the condition that at least two-thirds prior written consent of the Shares on a fully- diluted basis, together with Company. Parent and Merger Sub expressly reserve the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior right to the Effective Time, but excluding any Shares held by the Company or waive any of its subsidiaries) be validly tendered (the "Minimum Condition")Offer Conditions, and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; providedprovided that, howeverunless otherwise provided in this Agreement or previously approved by the Company in writing, that Parent and Merger Sub shall not: (i) decrease the Minimum Condition may be amended Offer Price or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Shares sought to be purchased in the Offer, imposes (iii) impose conditions to on the Offer in addition to those set forth in Annex Ithe Offer Conditions or amend any Offer Condition, extends (iv) waive or amend the expiration date Minimum Condition, (v) amend any other term of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which a manner that is adverse to the holders of Shares, or (vi) extend (or make any other amendment that would have the Shares. Subject to satisfaction effect of extending) the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer Expiration Date (as soon defined below) except as it is required or permitted to do so under applicable law and shall pay for such Shares promptly thereafterby Section 1.1(e).
(bd) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on On the date the Offer is commenced, Merger Sub shall, and Parent and Acquisition shall cause Merger Sub to, file with the SEC U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”) and cause the Offer Documents to be disseminated to the holders of Shares as, and to the extent, required by applicable Law. The Schedule TO shall contain as an exhibit or incorporate by reference Company hereby consents to the inclusion of the recommendation of the Company Board that the Company’s stockholders accept the Offer and tender their Shares pursuant to Purchase the Offer (the “Company Recommendation”) in the Offer Documents provided that there has not been a Company Adverse Recommendation Change or portions thereof) an Intervening Event Recommendation Change. Merger Sub shall, and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOMerger Sub to, cause the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") Documents to comply as to form in all material respects with the Exchange Act requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company and the rules holders of Shares that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.1(d), including communication of the Offer to the record and regulations thereunder and other Applicable Lawsbeneficial holders of Shares. Each of Parent, Acquisition and the Company parties agrees to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent and Acquisition Merger Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SECLaw. Parent and Acquisition agree to Merger Sub shall provide in writing the Company and its counsel in writing with any written comments (and shall orally describe any oral comments) that Parent, Acquisition Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the holders of Shares, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(e) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until 12:01 a.m., New York City time, on the twenty-first (21st) business day (for purposes of this Section 1.1(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.1(e) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.1(e), the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any of the Offer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for successive periods of not more than five (5) business days (the length of such period to be determined by Parent or Merger Sub in their sole discretion), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions, and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, 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 or the Offer Documents; provided that, in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date. Except as provided in the immediately preceding sentence, Parent and Merger Sub shall not extend the Offer. Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Parent or Merger Sub to terminate this Agreement pursuant to Article VI. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within one (1) business day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Article VI, prior to the acceptance for payment of Shares tendered in the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof. Merger Sub shall not withdraw the Offer unless this Agreement has been terminated in accordance with Article VI.
Appears in 2 contracts
Sources: Merger Agreement (XPO Logistics, Inc.), Merger Agreement (Con-Way Inc.)
The Offer. SECTION 1.1 The Offer
(a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex I heretoA hereto shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreementpracticable, but in no event later than one week five business days after the date hereofpublic announcement of the execution hereof by the parties, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities and Exchange Act of 1934 1934, as amended (the "Exchange Act")), ) an offer to purchase (the "Offer") for cash any and all of the Company's issued and outstanding shares of common stock, par value $.01 per share, of the Company share (individually a "Share" and collectively, the "Shares") ), at a price for each Share of $16.005.40 per share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"). The obligation of Acquisition Parent to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I A hereto. Acquisition expressly reserves the right to increase .
(b) Parent shall not decrease the Offer Price Price, change the form of consideration payable in the Offer, decrease the number of Shares sought pursuant to the Offer, add additional conditions to the Offer, or to make any other changes in the terms and or conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with Offer which are otherwise materially adverse to holders of Shares without the prior written consent of the Company (acting through the Special Committee, as defined in Section 1.2(a) below). Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (ii20) no change business days from the date the Offer is commenced; provided, however, that without the Special Committee's consent, Parent may be made that changes the form of consideration (i) from time to be paid, decreases the price per Share or the number of Shares sought in time extend the Offer, imposes conditions to if at the Offer in addition to those set forth in Annex I, extends the scheduled expiration date of the Offer beyond the initial expiration date any of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offerwaived, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer and (iiiii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for any reason on one or more occasions for an aggregate period of not more than five ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence. In addition, if at any scheduled expiration date of the Offer any of the conditions of the Offer have not been satisfied or waived by Parent, but are capable of being satisfied in the reasonable, good faith judgment of Parent, then, on the written request of the Company (acting through the Special Committee), Parent shall from time to time extend the Offer for up to twenty (20) business days from the then- scheduled expiration date of the Offer.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, thereto and including all exhibits thereto, the "Schedule TO14D-1") with respect to the Offer, and a Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto and including all exhibits thereto, the "Schedule 13E-3"). The Schedule TO 14D-1 shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition Sub agree that they shall cause the Schedule TO14D-1, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to ), and the Schedule 13E-3, shall comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel counsel, and the Special Committee and its counsel, shall be given reasonable an opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition Sub agree to provide in writing the Company and its counsel in writing with any comments Parent, Acquisition Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Ast Research Inc /De/), Merger Agreement (Samsung Electronics Co LTD /Fi)
The Offer. (a) Provided that nothing So long as this agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.01 and none of the conditions events set forth in Annex I heretohereto (as hereinafter provided) shall have occurred or exist, as promptly as reasonably practicable after the public announcement of the terms of this AgreementPurchaser shall, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition the Purchaser to) , commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act"))) as promptly as practicable after the date hereof, an offer (but in any event not later than the "Offer") fifth business day following the date hereof, the Offer for all of outstanding Shares at the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Share Offer Price applicable to such Shares") at a price for each Share of $16.00, net to the seller in cash in accordance with this Agreement. The initial expiration date for the Offer shall be the twentieth business day from and after the date the Offer is commenced, including the date of commencement as the first business day in accordance with Rule 14d-2 under the Exchange Act (the "Offer PriceInitial Expiration Date"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares As promptly as reasonably practicable, on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, the Parent and (iii) Company is in material compliance the Purchaser shall file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable ), with respect to the Offer and (ii) if more than 80% but less than 90% of Offer, the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Purchaser's Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") (together with all any supplements or amendments and supplements thereto, and including all exhibits thereto, the "Schedule TOOffer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase") which shall be mailed to the holders of Shares with respect to the Offer. The Schedule TO Company and its counsel shall contain as be given an exhibit or incorporate by reference opportunity to review and comment upon the Offer Documents and any amendment or supplement thereto prior to Purchase (or portions thereof) the filing thereof with the SEC, and forms of the related letter of transmittal Parent and summary advertisementPurchaser shall consider such comments in good faith. Parent and Acquisition Purchaser agree that they shall cause to provide to the Schedule TOCompany and its counsel any comments which Parent, Purchaser or their counsel may receive from the Staff of the SEC with respect to the Offer Documents promptly after receipt thereof. The obligation of Parent to Purchase and all amendments accept for payment or supplements thereto pay for any Shares tendered pursuant to the Offer will be subject to the satisfaction or waiver (which together constitute to the extent permitted by this Agreement) of the conditions set forth in Annex I hereto (the "Offer DocumentsConditions"). Without the prior written consent of the Company, the Purchaser shall not decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the Minimum Condition (as defined in Annex I), impose additional conditions to the Offer, except as otherwise provided herein, extend the Initial Expiration Date or amend any other term of the Offer in any
(b) to The Offer Documents will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Acquisition Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Rsa Acquisition Corp), Merger Agreement (American Safety Razor Co)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 hereof and none of the events set forth in clauses (a) through (g) of Annex I hereto shall have occurred thator exist, had the Offer referred to below been commencedPurchaser shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition the Purchaser to) , commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon promptly as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
practicable after the date hereof, but in any event not later than five (b5) The Offer shall initially be scheduled to expire 20 business days following the commencement thereofdate hereof. IfThe initial expiration date for the Offer shall be October 15, at a then-scheduled expiration date1999 (the "Expiration Date"). As promptly as practicable, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent Purchaser shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Purchaser's Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1" and together with all amendments and supplements theretothe documents therein pursuant to which the Offer will be made, and including all exhibits with any supplements or amendments thereto, the "Schedule TOOffer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase") that shall be mailed to the holders of Shares with respect to the Offer. The Schedule TO shall contain as an exhibit obligation of Parent and the Purchaser to accept for payment or incorporate by reference pay for any Shares tendered pursuant to the Offer will be subject only to Purchase (or portions thereof) there being validly tendered and forms not withdrawn prior to the expiration of the related letter Offer, that number of transmittal and summary advertisement. Parent and Acquisition agree Shares which represents at least seventy-five percent of the Shares entitled to vote that they shall cause are outstanding on a fully diluted basis (without giving pro forma effect to the Schedule TO, potential issuance of any Shares issuable under the Offer to Purchase and all amendments or supplements thereto Stock Option Agreement) (which together constitute the "Offer DocumentsMinimum Condition") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent), Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that satisfaction or waiver of each condition set forth in Annex I hereto (the term "fully diluted basis" in reference to the Shares means all outstanding securities entitled generally to vote in the election of directors of the Company on a fully diluted basis, after giving effect to the exercise or conversion of all options, warrants, rights and securities exercisable or convertible into such information voting securities). Without the prior written consent of the Company, the Purchaser shall have become false not (i) decrease the Offer Price or misleading change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer; (iii) amend or waive satisfaction of the Minimum Condition; or (iv) amend any other term of the Offer in any material respectmanner adverse to the holders of any Shares; provided, and Parent and Acquisition further agree however, that if on the Expiration Date all conditions to take all steps necessary the Offer shall not have been satisfied or waived, the Purchaser may, from time to cause time in its sole discretion, extend the Schedule TO as so corrected Expiration Date (each extension to be filed with for ten business days or less); provided, further, that the SEC Expiration Date shall in no event be extended past October 31, 1999 without the written consent of the Company. The Purchaser shall, on the terms and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and subject to the extent required by applicable federal securities laws. The Company prior satisfaction or waiver of the conditions of the Offer, accept for payment and its counsel shall be given reasonable opportunity to review purchase, as soon as practicable after the expiration of the Offer, all Shares validly tendered and comment on the Offer Documents not withdrawn prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt expiration of such comments.the
Appears in 2 contracts
Sources: Merger Agreement (Effective Management Systems Inc), Merger Agreement (Ifs Ab)
The Offer. (a) Provided that nothing this Agreement --------- shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 7.01 and none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the public announcement of the terms of this Agreementdate hereof, but in no event later than one week five business days after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) initial public announcement of Purchaser's intention to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition")) that at least a majority of the then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and (ii) not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of the other conditions set forth in Annex I A hereto. Acquisition Purchaser expressly reserves the right to waive any such condition, to increase the Offer Price or price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that (i) the Minimum Condition may not be amended or waived only except with the prior ------- written consent of the Company Special Committee; and (ii) provided further that no -------- ------- change may be made that changes the form of consideration to be paid, which decreases the price per Share payable in the Offer or which reduces the maximum number of Shares sought to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex IA hereto. The Per Share Amount shall, extends subject to applicable withholding of taxes, be net to the expiration date seller in cash, upon the terms and subject to the conditions of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the SharesOffer. Subject to satisfaction the terms and conditions of the conditions contained in Annex IOffer, Acquisition Purchaser shall accept pay, as promptly as practicable after expiration of the Offer, for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafternot withdrawn.
(b) The Offer shall initially be scheduled to expire 20 business days following As promptly as reasonably practicable on the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance Purchaser shall file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause )
(i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on --- Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO14D-1") with respect to the OfferOffer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule TO 14D-1 and the Schedule 13E-3 shall contain as an exhibit or shall incorporate by reference an offer to purchase (the "Offer to Purchase (or portions thereofPurchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement. Parent and Acquisition agree that they shall cause advertisement (the Schedule TO14D-1, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments or supplements thereto (which together constitute thereto, being referred to herein collectively as the "Offer Documents") to comply in all material respects with the Exchange Act ). Gambro, Parent, Purchaser and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the --------------- Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respectmisleading, and Gambro, Parent and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Ren Corp Usa), Merger Agreement (Cobe Laboratories Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.1 and none of the conditions events set forth in Annex I heretohereto shall have occurred and be continuing, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an offer ) the Offer as promptly as practicable (and in any event not later than ten (10) business days) following the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")date hereof. The obligation obligations of Acquisition Purchaser to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the condition that at least two-thirds expiration of the Offer that number of Shares on a fully- diluted basiswhich, together with the Shares then actually owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company Yahoo! or Purchaser or any direct or indirect wholly owned subsidiary of its subsidiaries) be validly tendered Yahoo!, represents at least a majority of the Shares outstanding on a Fully Diluted Basis (the "Minimum Condition"), ; and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves For purposes of the right foregoing, "Fully Diluted Basis" shall refer to increase the number of Shares issued and outstanding at any time after taking into account all Shares issuable upon the conversion of Launch convertible securities or upon the exercise of any options, warrants or rights to purchase shares of Launch capital stock that could vest within 90 days of the time of determination and in each case that have a conversion or exercise price per share less than the Offer Price Price. Subject to the prior satisfaction or to make any waiver by Yahoo! or Purchaser of the Minimum Condition and the other changes in the terms and conditions of the Offer set forth in Annex I hereto, Purchaser shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer; provided. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that contains the terms set forth in this Agreement, however, that (i) the Minimum Condition may be amended or waived only with and the prior written consent of other conditions set forth in Annex I hereto. Purchaser shall not, and Yahoo! shall cause Purchaser not to, decrease the Company and (ii) no Offer Price, change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or decrease the number of Shares sought in the Offer, imposes impose additional conditions to the Offer in addition to those set forth in Annex IOffer, extends extend the expiration date of the Offer offer beyond the initial expiration date that is twenty (20) business days after commencement of the Offer (the "Initial Expiration Date") except as provided in (b)set forth below, below) or makes amend any other change which is condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of Launch (such consent to be authorized by Launch's Board of Directors or a duly authorized committee thereof). Subject to satisfaction of Notwithstanding the conditions contained in Annex Iforegoing, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000Purchaser may, without the consent of the CompanyLaunch, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to (i) extend the Offer pursuant to beyond the immediately preceding sentenceInitial Expiration Date for the shortest time periods which it reasonably believes are necessary, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (such periods, but in no event later more than December 31an additional fifteen (15) business days, 2000)if, if (i) at the scheduled expiration of the Offer, Yahoo! and Purchaser shall not be in material breach of this Agreement and any of the conditions set forth in Annex I to Purchaser's obligation to accept Shares for payment, shall not have been be satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) and such condition is reasonably capable of being satisfied, and or (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (iii) extend the Offer for any period required by any rule rule, regulation or regulation interpretation of the United States Securities and Exchange Commission (the "SEC") ), or the staff thereof, applicable to the Offer and (ii) if more than 80% but less than 90% Offer. Purchaser may, without the consent of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration dateLaunch, extend the Offer for an aggregate a subsequent offering period of not more than five up to twenty (20) business days beyond in accordance with Rule 14d-11 under the latest expiration date that would otherwise Exchange Act. In addition, the Offer Price may be permitted under clause (i) increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of this sentenceLaunch.
(cb) As soon as practicable on On the date the Offer is commenced, Parent Yahoo! and Acquisition Purchaser shall file with the SEC SEC, pursuant to Regulation M-A under the Exchange Act ("Regulation M-A"), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer). The Schedule TO shall contain include the summary term sheet required under Regulation M-A and, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "Offer Documents") to comply in all material respects with the Exchange Act ). Yahoo! and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further Purchaser agree to take all steps necessary to cause the Schedule TO as so corrected Offer Documents to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company Yahoo! and Purchaser agree to take all steps necessary to ensure that (i) the Offer Documents will comply in all material respects with the provisions of the Exchange Act, the rules and regulations thereunder and other applicable federal securities laws; and (ii) the Offer Documents shall not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made by Yahoo! or Purchaser with respect to information furnished by Launch expressly for inclusion in the Offer Documents. Yahoo! and Purchaser, on the one hand, and Launch, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by law. Yahoo! and Purchaser further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Launch and its counsel shall be given a reasonable opportunity to review and comment on upon the Offer Documents prior to the filing thereof Schedule TO before it is filed with the SEC. Parent In addition, Yahoo! and Acquisition Purchaser agree to provide in writing the Company Launch and its counsel with any comments Parentcomments, Acquisition whether written or oral, that Yahoo!, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Yahoo!'s or Purchaser's, as the case may be, receipt of such comments, and any written or oral responses thereto.
Appears in 2 contracts
Sources: Merger Agreement (Yahoo Inc), Merger Agreement (Yahoo Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article VIII hereof and none of the conditions events set forth in Annex I heretohereto (the "Tender Offer Conditions") shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the fifth business day from the date hereofof this Agreement, Acquisition shall (and Parent shall cause Acquisition the Purchaser to) , and the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that Offer to purchase all outstanding Shares at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably file all necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance documents with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable in connection with the Offer (together with any amendments or supplements to the "Offer Documents"). The Offer shall remain open until at least the twentieth business day after the commencement of the Offer. Purchaser shall disseminate to holders of Common Shares the Offer Documents to the extent required by law. The obligation of the Purchaser to accept for payment or pay for any Shares tendered pursuant thereto will be subject only to the satisfaction of the conditions set forth in Annex I hereto.
(b) Without the prior written consent of the Company, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Shares or reduce the time period during which the Offer shall remain open. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of all the Tender Offer Conditions as of any expiration date, the Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Notwithstanding the foregoing, the Purchaser shall be entitled to extend the Offer, if at the initial expiration of the Offer, or any extension thereof, any condition to the Offer is not satisfied or waived, and Parent agrees to cause the Purchaser to extend the Offer up to 40 days in the aggre- gate, in one or more periods of not more than 10 business days, if, at the initial expiration date of the Offer, or any extension thereof, any condition to the Offer set forth in paragraphs (a), (b) or (g) of Annex I is not satisfied or waived; provided, however, that the Purchaser shall not be required to extend the Offer as provided in this sentence unless, in Parent's reasonable judgment, (i) each such condition is reasonably capable of being satisfied and (ii) if more than 80% the Company is in material compliance with all of its covenants under this Agreement. In addition, without limiting the foregoing, the Purchaser may, without the consent of the Company, if, on the expiration date of the Offer, the Shares validly tendered and not withdrawn pursuant to the Offer are sufficient to satisfy the Minimum Condition (as defined in Annex I hereto) but equal to less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration dateShares, extend the Offer for an aggregate period of not more than five up to 15 business days beyond in the latest expiration date aggregate notwithstanding that would otherwise be permitted under clause all the conditions to the Offer have been satisfied so long as Purchaser irrevocably waives the satisfaction of any of the conditions to the Offer (iother than those set forth in paragraphs (a), (b) or (d) of this sentenceAnnex I) that subsequently may not be satisfied during any such extension of the Offer. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase in each case without the consent of the Company.
(c) As soon as practicable on Parent and the date Purchaser represent that the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to Documents will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. The Company and regulations thereunder its counsel shall be given an opportunity to review and other Applicable Lawscomment on the Offer Documents and any material amendments thereto prior to the filing thereof with the SEC. Each of Parent, Acquisition Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to Purchaser will provide in writing the Company and its counsel with a copy of any written comments Parent, Acquisition or their counsel telephonic notification of any oral comments Parent or Purchaser may receive received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and will provide the Company and its counsel with a copy of such commentsany written responses and telephonic notification of any oral responses of Parent, Purchaser or their counsel.
Appears in 2 contracts
Sources: Merger Agreement (United States Filter Corp), Merger Agreement (United States Filter Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below previously been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth validly terminated in Annex I heretoaccordance with its terms, as promptly as reasonably practicable after following the public announcement of the terms date of this Agreement, Agreement (but in no event later than one week after the date hereofOctober 4, Acquisition shall (and 2010), Parent shall cause Acquisition Purchaser to) , and Purchaser shall, commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934 (the "Exchange Act")) the Offer for all (or, solely in the circumstances described in Section 2.1(e)(ii), an offer (the "Offer"Reduced Purchase Amount) for all of the outstanding shares Company Shares for a price per Company Share equal to the Per Share Amount (as adjusted as provided in Section 2.1(h)). The Offer shall be made by means of common stock, par value $.01 per share, an offer to purchase (the “Offer to Purchase”) and form of the Company related letter of transmittal (individually a "Share" and collectivelythe Schedule TO, the "Shares"Offer to Purchase and any other ancillary documents pursuant to which the Offer will be made, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the “Offer Documents”) at that contain the terms and conditions set forth in this Agreement and Annex A. The date on which Purchaser commences the Offer, within the meaning of Rule 14d-2 promulgated under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”
(b) Subject to the extension rights of the parties set forth in this Agreement, the Offer shall be subject only to the satisfaction or waiver of each of the conditions set forth in Annex A (the “Tender Offer Conditions”). Unless the Offer is extended pursuant to and in accordance with the terms of this Agreement, promptly (within the meaning of Rule 14e-1(c) promulgated under the Exchange Act) after the expiration of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, (i) all Company Shares validly tendered pursuant to the Offer (and not properly withdrawn) or (ii) in the circumstances contemplated by Section 2.1(e)(ii), Company Shares representing the Reduced Purchase Amount (such date of acceptance for payment, the “Acceptance Time”). Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Purchaser on a price timely basis the funds necessary to pay for each any Company Shares that Purchaser becomes obligated to purchaser pursuant to the Offer. The Per Share of $16.00, Amount shall be net to the seller in cash (the "Offer Price"). The obligation of Acquisition cash, without interest, subject to accept for payment and to pay reduction for any Shares tendered shall be subject only applicable withholding or stock transfer Taxes payable by or with respect to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested seller. No Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any Company Subsidiary shall be tendered pursuant to the Offer.
(c) Each of its subsidiaries) be validly tendered (the "Minimum Condition"), Parent and (ii) the other conditions set forth in Annex I hereto. Acquisition Purchaser expressly reserves the right from time to time, in its sole and absolute discretion, to increase the Per Share Amount, waive any Tender Offer Price Condition or to make amend, modify or supplement any other changes in of the Tender Offer Conditions or terms and conditions of the Offer; provided. Notwithstanding anything to the contrary contained in this Agreement, howeverneither Parent nor Purchaser shall, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and except as otherwise permitted or required by Sections 2.1(d)-(f):
(i) change or waive the Minimum Condition;
(ii) no decrease the number of Company Shares sought to be purchased by Purchaser in the Offer;
(iii) reduce the Per Share Amount;
(iv) extend or otherwise change may be made that changes the Expiration Date of the Offer;
(v) change the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer;
(vi) amend, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date modify or supplement any of the Tender Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied Conditions (other than conditions which are not capable of being satisfiedto waive such Tender Offer Conditions); or
(vii) amend, Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date modify or supplement terms of the Offer in one or more periods a manner that adversely affects the holders of not more than ten Company Shares in their capacities as holders of Company Shares.
(d) Unless the Offer is extended pursuant to and in accordance with this Agreement, the Offer shall expire at midnight, New York City time, on the day that is twenty (20) business days each (but in no event later than December 31, 2000), if (i) any of the conditions calculated as set forth in Annex I shall not have been satisfied or waived at Rule 14d-1(g)(3) promulgated under the scheduled or extended expiration date of Exchange Act) after the Offer, Offer Commencement Date (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. “Initial Expiration Date”). Notwithstanding the foregoing, Acquisition may, without unless the consent of Agreement is terminated in accordance with the Companyterms hereof, (i) Purchaser shall extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission SEC or its staff or the NASDAQ Global Market (the "SEC"“Nasdaq”) that is applicable to the Offer Offer, and (ii) if more than 80% but less than 90% if, on the Initial Expiration Date or any subsequent date as of the outstanding Shares shall have been validly tendered pursuant to which the Offer as of is scheduled to expire (together with the scheduled Initial Expiration Date, the “Expiration Date”), any Tender Offer Condition is not satisfied or extended expiration datewaived, Purchaser shall extend the Offer for an aggregate period one (1) or more successive periods as determined by Purchaser of not more than five up to ten (10) business days beyond each (or any longer period as may be requested by Purchaser and approved in advance by the latest expiration date Company) in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that would otherwise be permitted under in no event with respect to either clause (i) or (ii) shall Purchaser be required to extend the Offer beyond the Outside Date; and provided further however, that if, at the Initial Expiration Date or at any subsequent Expiration Date (other than any such Expiration Date that follows an extension of the Offer pursuant to Sections 2.1(e)(i) or 2.1(f)), all of the Tender Offer Conditions (except for the Minimum Condition) are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its Expiration Date beyond the Initial Expiration Date or such subsequent Expiration Date for one or more successive periods in order to permit the satisfaction of all of the Tender Offer Conditions for an aggregate of forty (40) business days, unless the Minimum Condition shall be satisfied earlier. Except as otherwise provided in Sections 2.1(e) and 2.1(f), neither Parent nor Purchaser shall extend the Offer in any manner other than pursuant to and in accordance with this Section 2.1(d) without the prior written consent of the Company. The Offer shall not be terminated prior to the Outside Date, unless this Agreement is validly terminated in accordance with Section 9.1, in which case Purchaser shall (and Parent shall cause Purchaser to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one business day) after such termination of this sentenceAgreement. Nothing in this Section 2.1(d) shall affect any termination rights in Section 9.1.
(ce) Notwithstanding anything to the contrary set forth in Section 2.1(d), if, at any Expiration Date, all of the Tender Offer Conditions (including the Minimum Condition) shall have been satisfied or have been waived, but the number of Company Shares validly tendered in the Offer and not properly withdrawn is less than that number of Company Shares which, when added to the number of Company Shares that may be issued pursuant to the Top-Up Option in compliance with Section 2.3, would represent at least one (1) Company Share more than ninety percent (90%) of the issued and outstanding Company Shares then outstanding (including such Company Shares issued upon exercise of the Top-Up Option) (the “Short-Form Merger Threshold”), then in such case Purchaser may, in its sole and absolute discretion, without the consent of the Company:
(i) extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and approved in advance by the Company) until the Outside Date in order to permit additional Company Shares to be tendered into the Offer such that the Short-Form Merger Threshold may be attained; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser elects to extend the Offer pursuant to and in accordance with this Section 2.1(e)(i), then each of Parent and Purchaser shall be deemed to have irrevocably waived all of the Tender Offer Conditions (other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, which shall remain in full force and effect) and its right to terminate this Agreement pursuant to Sections 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iii), 9.1(c) (as it relates to the Tender Offer Condition contemplated by clause (iii)(d) of Annex A, but not as it relates to the Tender Offer Condition contemplated by clause (iii)(e) of Annex A), or 9.1(d) (it being acknowledged and agreed that, (A) notwithstanding such irrevocable waiver, without the prior written consent of the Company, neither Parent nor Purchaser shall be permitted to accept for payment (or pay for) any Company Shares that are tendered in the Offer unless the Minimum Condition is satisfied at such time, (B) during any extension of the Offer pursuant to this Section 2.1(e)(i), the Company shall not exercise any remedies against Parent or Purchaser for failure to accept for payment (or pay for) any Company Shares that are tendered in the Offer, and (C) if for any reason other than a failure of the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, Purchaser does not accept for payment (and pay for) all Company Shares validly tendered in the Offer and not properly withdrawn at the expiration of such successive period(s), then Parent and Purchaser shall be deemed to be in breach of this Agreement); or
(ii) (A) amend the Offer and the Offer Documents (but only to the extent required by applicable Law) to reduce the Minimum Condition to such number of Company Shares (the “Reduced Purchase Amount”) such that following the purchase of Company Shares in the Offer, Parent and its wholly owned subsidiaries, including Purchaser, would own forty-nine and nine-tenths percent (49.9%) of the Company Shares then outstanding and (B) purchase, on a pro rata basis based on the Company Shares actually deposited in the Offer by such each holder of Company Shares, Company Shares representing the Reduced Purchase Amount in the Offer; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser purchases a number of Company Shares equal to the Reduced Purchase Amount pursuant to and in accordance with this Section 2.1(e)(ii), then, without the prior written consent of Parent and Purchaser, at all times prior to the termination of this Agreement, the Company shall take no action whatsoever (including the redemption of any Company Shares) that would have the effect of increasing the percentage of direct or indirect ownership of Company Shares by Parent and its controlled affiliates, including Purchaser, in excess of forty-nine and nine-tenths percent (49.9%).
(f) Notwithstanding anything to the contrary set forth in Section 2.1(d), if, at any Expiration Date, all of the Tender Offer Conditions (including the Minimum Condition) shall have been satisfied or have been waived, but (i) there exists an uncured Financing Failure and (ii) such Financing Failure impedes the ability of Parent or Purchaser to accept Company Shares for payment in the Offer, then: (A) Purchaser shall be permitted to extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and approved in advance by the Company) until the Outside Date in order to permit such Financing Failure to be cured; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser elects to extend the Offer pursuant to and in accordance with this Section 2.1(f), then each of Parent and Purchaser shall be deemed to have irrevocably waived all of the Tender Offer Conditions (other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, which shall remain in full force and effect) and its right to terminate this Agreement pursuant to Sections 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iii), 9.1(c) (as it relates to the Tender Offer Condition contemplated by clause (iii)(d) of Annex A, but not as it relates to the Tender Offer Condition contemplated by clause (iii)(e) of Annex A), or 9.1(d) (it being acknowledged and agreed that, (A) notwithstanding such irrevocable waiver, without the prior written consent of the Company, neither Parent nor Purchaser shall be permitted to accept for payment (or pay for) any Company Shares that are tendered in the Offer unless the Minimum Condition is satisfied at such time, (B) during any extension of the Offer pursuant to this Section 2.1(f), the Company shall not exercise any remedies against Parent or Purchaser for failure to accept for payment (or pay for) any Company Shares that are tendered in the Offer, and (C) if for any reason other than a failure of the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, Purchaser does not accept for payment (and pay for) all Company Shares validly tendered in the Offer and not properly withdrawn at the expiration of such successive period(s), then Parent and Purchaser shall be deemed to be in breach of this Agreement).
(g) If immediately following the Acceptance Time and assuming exercise in full of the Top-Up Option, Parent, Purchaser and their respective wholly owned subsidiaries would own less than ninety percent (90%) of the Company Shares outstanding at that time (after giving effect to the exercise in full of the Top-Up Option), Purchaser may, in its sole discretion without the consent of the Company, provide for a “subsequent offering period” (and one (1) or more extensions thereof) following the Acceptance Time (as provided in Rule 14d-11 under the Exchange Act) of not less than three (3) nor more than twenty (20) business days in the aggregate (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act). Promptly (within the meaning of Rule 14e-1(c) promulgated under the Exchange Act) after any Company Shares are validly tendered during any such subsequent offering period (or extension thereof), Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all such Company Shares. Without limiting the generality of the foregoing, Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to pay for any Company Shares that Purchaser becomes obligated to purchaser pursuant to such subsequent offering period (or extension thereof). The Per Share Amount shall be net to the seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer Taxes payable by or with respect to such seller. No Company Shares held by the Company or any Company Subsidiary shall be tendered pursuant to such subsequent offering period (or extension thereof).
(h) The Per Share Amount shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Company Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by Purchaser for the Company Shares; provided, however, that nothing in this Section 2.1(h) shall be construed as permitting the Company to take any action or enter into any transaction otherwise prohibited by this Agreement.
(i) As soon promptly as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO shall contain as an exhibit or shall incorporate by reference the Offer Documents. Purchaser shall use its reasonable best efforts to Purchase (or portions thereof) and forms cause the Offer Documents to be disseminated to holders of Company Shares in all material respects to the related letter of transmittal and summary advertisementextent required by applicable federal securities laws. Parent and Acquisition agree that they Purchaser shall use their respective reasonable best efforts to cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") Documents to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Lawsapplicable requirements of federal securities laws. Each of Parent, Acquisition Purchaser and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition Purchaser further agree to take all steps necessary use reasonable best efforts to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.correcte
Appears in 2 contracts
Sources: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as reasonably practicable after the public announcement of the terms of this Agreementdate hereof, but in no event later than one week the fifth business day after the date hereofpublic announcement of the execution of this Agreement, Acquisition shall (and Parent shall cause Acquisition to) Merger Subsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act"1934)), and Merger Subsidiary shall commence, an offer (the "OfferOFFER") to purchase for cash all of issued and outstanding shares, together with the outstanding shares associated rights to purchase Series B Participating Cumulative Preferred Stock ( collectively, the "SHARES") of common stock, $.00l par value $.01 per share, of the Company (individually a "Share" and collectively, the "SharesCOMMON STOCK") at a price for each Share of $16.0020 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to as the "Offer PriceOFFER PRICE"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered Offer shall be subject to only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other those conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make A (any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition which may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought by Merger Subsidiary in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as its sole discretion; provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000that, without the consent of the Company, for such amount of time Merger Subsidiary shall not waive the Minimum Tender Condition (as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting defined in Annex A)).
(b) As soon as practicable on the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, Parent and (iii) Company is in material compliance Merger Subsidiary shall file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable with respect to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TOSCHEDULE 14D-1") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO), the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and will contain the rules offer to purchase relating to the Offer (the "OFFER TO PURCHASE") and regulations thereunder forms of related letters of transmittal and other Applicable Lawssummary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the "OFFER Documents"). Each Parent will deliver copies of Parent, Acquisition the proposed forms of the Schedule 14D-1 and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and (as well as any change thereto) to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and Company within a reasonable time prior to the extent required commencement of the Offer for prompt review and comment by applicable federal securities laws. The the Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SECcounsel. Parent and Acquisition agree to will provide in writing the Company and its counsel with in writing any comments Parentthat Merger Subsidiary, Acquisition Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Parent and Merger Subsidiary represent that the Schedule 14D-1 and the Offer Documents (including any amendments or supplements thereto) (i) shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the "EXCHANGE ACT") and (ii) shall not, in the 6 case of the Schedule 14D-1 at the time filed with the SEC and at the time the Offer is consummated and in the case of the Offer Documents when first published, sent or given to the stockholders of the Company and at the time the Offer is consummated, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, that Parent and Merger Subsidiary make no covenant, representation or warranty as to any of the information relating to and supplied by the Company in writing specifically for inclusion in the Schedule 14D-1 or the Offer Documents (including any amendments or supplements thereto). Parent and Merger Subsidiary shall promptly correct any information in the Schedule 14D-1 or the Offer Documents that shall have become false or misleading in any material respect and take all steps necessary to cause such Schedule 14D-1 or Offer Documents as so corrected to be filed with the SEC and disseminated to the stockholders of the Company, as and to the extent required by applicable law. Parent and Merger Subsidiary will provide copies of any amendments or supplements to the Offer Documents or the Schedule 14D-1 to the Company prior to any filing of such commentsamendments or supplements with the SEC in order to provide the Company and its counsel with a reasonable opportunity to review and comment thereon.
(c) Each of Parent and Merger Subsidiary expressly reserves the right to modify the terms of the Offer, except that neither Parent nor Merger Subsidiary shall, without the prior written consent of the Company, decrease the consideration payable in the Offer, change the form of consideration payable in the Offer, decrease the number of Shares sought pursuant to the Offer, change or modify the conditions to the Offer in a manner adverse to the Company or holders of Shares, impose additional conditions to the Offer, waive the Minimum Tender Condition, or amend any term of the Offer in any manner adverse to the Company or holders of Shares. Notwithstanding the foregoing, Merger Subsidiary, without the consent of the Company, (i) must extend the Offer for an aggregate of 10 additional business days after the then scheduled expiration date of the Offer to the extent necessary to permit such condition to be satisfied (the "FIRST EXTENSION PERIOD"), (ii) may extend the Offer, if at the end of the First Extension Period any of the conditions to Merger Subsidiary's obligation to accept for payment and pay for Shares shall not have been satisfied, until such time as such condition is satisfied or waived and (iii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer.
(d) Parent will provide or cause to be provided to Merger Subsidiary on a timely basis the funds necessary to accept for payment, and pay for, Shares that Merger Subsidiary becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(e) Merger Subsidiary shall accept for payment, and pay for, Shares in accordance with the Offer, subject to the satisfaction or waiver of the conditions to the Offer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (JLG Industries Inc), Merger Agreement (Gradall Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and no event shall have occurred that, had the Offer referred and no circumstance shall exist that would result in a failure to below been commenced, would give rise to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex I heretoA hereto (the "Offer Conditions," as defined in Annex A), Purchaser shall, as promptly soon as reasonably practicable after the date hereof (and in any event within five business days from the date of public announcement of the terms of this Agreement, but in no event later than one week after the date execution hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (commence the "Offer") Offer to purchase for cash all of the outstanding shares of common stockShares, par value $.01 per share, together with the associated Rights (all references herein to Shares in the context of the Company (individually a "Share" and collectivelytransactions contemplated by this Agreement shall be deemed to include such Rights), the "Shares") at a price for each Share of $16.0010.75 per Share, net to the seller in cash (the "Offer Price")cash. The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of this Agreement and to the Offer; providedsatisfaction or waiver by Purchaser of the Offer Conditions. Purchaser shall not, however, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and Company, (iii) no decrease the price per Share to be paid in the Offer, change may be made that changes the form of consideration to be paid, decreases payable in the price per Share Offer (other than by adding consideration) or decrease the number of Shares sought in the Offer, imposes conditions to (ii) change or amend the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied Conditions (other than conditions which are to waive any condition, except that the Minimum Condition (as defined in Annex A) may not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, be waived without the consent of the Company), for (iii) impose additional conditions to the Offer or (iv) amend any other term of the Offer in any manner adverse to the holders of Shares (other than insignificant changes or amendments). The Offer shall expire at 12:00 midnight, Eastern Standard Time, on the 20/th/ business day following commencement of the Offer (such amount of time date and time, as may be extended in accordance with the terms hereof, is reasonably necessary referred to cause such as the "Expiration Date"); provided, -------- however, that if, on the Expiration Date, the Offer Conditions to be satisfiedhave not been ------- satisfied or waived, no such extension to exceed ten business days. Without limiting Purchaser shall have the right of Acquisition right, in its sole discretion, to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in for one or more periods not to exceed an aggregate of thirty business days; provided further that if all of the Offer Conditions have been ---------------- satisfied or waived and less than 90% of the outstanding Shares have been tendered in the Offer and not withdrawn, then Purchaser shall have the additional right, in its sole discretion, so long as Purchaser and Parent each waives in writing the satisfaction of each of the Offer Conditions, to extend the Offer for one or more than ten periods not to exceed an aggregate of twenty business days each (but days; and provided further that in no event later than December 31shall the Expiration Date be ---------------- extended beyond February 28, 2000), if 1999 (ithe "Outside Date") any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company. The Offer Conditions shall be for the benefit of Purchaser and, except with respect to the Minimum Condition, may be waived by Purchaser, in whole or in part at any time and from time to time, in its sole discretion.
(ib) extend As soon as reasonably practicable after the date hereof (and in any event within five business days from the date of public announcement of the execution hereof), Purchaser shall file a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, collectively the "Schedule 14D-1") with respect to the Offer for any period required by any rule or regulation of with the Securities and Exchange Commission (the "SEC") applicable ). The Schedule 14D-1 shall contain an offer to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO purchase (together with all amendments and supplements thereto, and including all exhibits thereto, thereto collectively the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms Purchase"), form of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOtransmittal, the Offer to Purchase and together with all amendments or and supplements thereto (collectively the "Letter of Transmittal"), and the form of summary advertisement (which Schedule 14D-1, Offer to Purchase, Letter of Transmittal and other documents, together constitute with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents") ). The Company and its counsel shall be given an opportunity to comply review the Offer Documents before they are filed with the SEC. Parent and Purchaser jointly represent and warrant that the Offer Documents will, in all material respects respects, comply with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder and all other Applicable Lawsapplicable laws, and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading; provided, however, that the -------- ------- representations and warranties in this subsection shall not apply to statements in or omissions from the Offer Documents made in reliance upon and in conformity with information furnished to Parent in writing by or on behalf of the Company. Each of Parent, Acquisition Parent and Purchaser shall promptly provide to the Company agrees a copy of any written comments received by them from the SEC with respect to the Offer Documents. Parent and Purchaser shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition Purchaser further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents (other than the Schedule 14D-1), as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Steel of West Virginia Inc), Merger Agreement (Swva Acquisition Inc)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 8.1, as promptly as reasonably practicable (but in any event not later than ten business days after the public announcement of Purchaser's intention to commence the terms of this AgreementOffer), but in no event later than one week after the date hereof, Acquisition shall (and Parent shall will cause Acquisition to) Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange ActEXCHANGE ACT")), an the Offer whereby Purchaser will offer (the "Offer") to purchase for cash all of the outstanding shares of common stock, par value $.01 per share, of Shares at the Company (individually a "Share" and collectively, the "Shares") at a price for each Per Share of $16.00Amount, net to the seller in cash (subject to reduction for any stock transfer taxes payable by the seller if payment is to be made to an individual or entity other than the Person in whose name the certificate for such Shares is registered or any applicable federal back-up withholding). For purposes of this Agreement, "Offer Price"PERSON" shall mean an individual, corporation, limited liability company, limited liability partnership, partnership, association, trust, unincorporated organization or other entity or group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act). Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time (as defined in Section 2.2 hereof), the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Amount will be correspondingly adjusted on a per- share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Acquisition Parent to cause Purchaser to commence the Offer, to consummate the Offer and to accept for payment and to pay for any Shares validly tendered shall in the Offer and not withdrawn in accordance therewith will be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition")to, and (ii) the other only to, those conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission ANNEX A hereto (the "SECOFFER CONDITIONS") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto), the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate terms of which are hereby incorporated herein by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsreference.
Appears in 2 contracts
Sources: Merger Agreement (Barnes & Noble Inc), Merger Agreement (Funco Inc)
The Offer. (a) Each of the Company and the Parent shall publicly announce the execution of this Agreement promptly following its execution, and shall cooperate with the timing of such announcements consistent with Company's obligations as a reporting company under the Securities Exchange Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇").
(b) Provided that nothing shall have occurred that, had the Offer referred that has resulted in a failure to below been commenced, would give rise to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex I heretoto this Agreement, as promptly as reasonably practicable not later than five business days after the public announcement of the terms execution of this Agreement, but in no event later than one week after the date hereofMerger Sub shall, Acquisition shall (and Parent shall cause Acquisition Merger Sub to) , commence (within the meaning of Rule 14d-2 l4d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), ) an offer (the "Offer") for to purchase all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Shares at a price for each Share of $16.0033.00 per Share, net to the seller selling stockholder in cash (the "Offer," which term shall include any amendments to such Offer Price"not prohibited by this Agreement). The obligation of Acquisition to accept for payment and to pay for any Shares tendered consummate the Offer shall be subject only to (i) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Offer and not withdrawn a number of Shares on a fully- diluted basisthat, together with the Shares then beneficially owned by Parent and/or AcquisitionParent, (including for purposes represents at least a majority of such calculation all the Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered outstanding on a fully diluted basis (the "Minimum Condition"), ) and (ii) to the other conditions set forth in Annex I heretoto this Agreement. Acquisition expressly reserves the right The Offer shall be made by means of an offer to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) purchase containing the Minimum Condition may be amended or waived only with and the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the further conditions set forth in Annex I I. Merger Sub hereby covenants and agrees that it shall hold the Offer open for not have been satisfied or waived at less than 20 business days. Simultaneously with the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance Merger Sub shall file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments 14D-1, as amended and supplements theretosupplemented, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Offer (the "Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof14D-1") and forms of the related letter Letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause Transmittal, as amended or supplemented, (collectively with the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute 14D-1 the "Offer Documents") provided that prior to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each filing of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information Documents, Merger Sub shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause afforded the Schedule TO as so corrected to be filed Company's counsel with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on make comments with respect to the Offer Documents prior to the filing thereof with the SECDocuments. The Parent and Acquisition agree agrees to provide in writing the Company and its counsel with any comments Parent, Acquisition that the Parent or their its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof. Each of such commentsthe Parent, Company and Merger Sub shall promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect and Merger Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the holders of Shares, as and to the extent required by applicable federal securities laws.
(c) Parent and Merger Sub expressly reserve the right to waive any of the conditions to the Offer and to modify the terms and conditions of the Offer from time to time, except that, without the prior written approval of the Company, the Offer shall not be amended (i) to reduce the cash price per Share to be paid pursuant thereto, (ii) to reduce the number of Shares to be purchased thereunder, (iii) to change the form of consideration to be paid in the Offer, (iv) to increase the minimum number of Shares which must be tendered to satisfy the Minimum Condition, (v) to impose additional conditions to the Offer or (vi) otherwise to amend the terms of the Offer in a manner that is materially adverse to the stockholders of the Company. In the event that the conditions set forth in paragraphs (a)(ii), (a)(iii) or (a)(iv) of Annex I shall not have been satisfied or waived at the scheduled or any extended expiration date of the Offer, Parent and Merger Sub shall extend the expiration date of the Offer in increments of not less than five business days; provided that Parent and Merger Sub shall not be required to extend the expiration date of the Offer past February 15, 2000.
Appears in 2 contracts
Sources: Merger Agreement (Air Express International Corp /De/), Tender Offer and Merger Agreement (Dp Acquisition Corp)
The Offer. (a) Provided that nothing The Company shall have occurred that, had commence the Offer referred as promptly as practicable. The obligation of the Company to below been commenced, would give rise to a right to terminate commence the Offer and to accept for payment, and to pay for any shares of WorldPort Common Stock tendered pursuant to any the Offer shall be subject only to the satisfaction of the conditions set forth in Annex I hereto, as promptly EXHIBIT D (the "OFFER CONDITIONS"). As soon as reasonably practicable after the public announcement of the terms following execution of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement and a Rule 13e-3 Transaction Statement on Schedule TO TO, including all exhibits thereto (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule SCHEDULE TO") with respect to the Offer, the Merger and the other transactions contemplated hereby. The Schedule TO shall contain as an exhibit or incorporate by reference an offer to purchase (the Offer to Purchase (or portions thereof"OFFER TO PURCHASE") and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause any related documents (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements or amendments or supplements thereto (which together constitute thereto, collectively, the "OFFER DOCUMENTS"). Heico and JOHCM shall each use their commercially reasonable efforts to ensure that (i) the Offer Documents") to Documents shall comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectAct, and Parent and Acquisition further agree to take all steps necessary to cause (ii) on the Schedule TO as so corrected to be date filed with the SEC and on the date first published, sent or given to WorldPort's stockholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the Effective Time, Heico or JOHCM discovers any information relating to either party, or any of their respective Affiliates, officers or directors, that should be set forth in an amendment or supplement to the schedule to, so that the document will not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, then the party that discovers any misleading information shall promptly notify the other Offer Documents as so corrected to parties hereto and an appropriate amendment or supplement describing the information shall be disseminated to holders of Sharespromptly filed with the SEC and, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior law or regulation, disseminated to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt shareholders of such commentsWorldPort.
Appears in 2 contracts
Sources: Joint Venture and Securityholders Agreement (Worldport Communications Inc), Joint Venture and Securityholders Agreement (Heisley Michael E Et Al)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as reasonably practicable (but in no event later than five business days after the public announcement of the terms of this Agreementexecution hereof), but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an offer () the "Offer") Offer to purchase for cash all of the issued and outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Common Stock at a price for each Share of $16.0017.50 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represents at least 80% of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer (including without limitation the Minimum Condition), accept for payment and pay for Shares tendered as soon as practicable after it is legally permitted to do so under applicable law, but in no event prior to January 3, 1996. The obligation obligations of Acquisition Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested Minimum Condition and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I A hereto. Acquisition expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to increase the Offer Price or to make any other changes in Purchase") containing the terms and conditions of the Offer; providedset forth in this Agreement, however, that (i) the Minimum Condition may be amended or waived only with and the prior other conditions set forth in Annex A hereto. Without the written consent of the Company and (ii) no Company, Purchaser shall not decrease the Offer Price, decrease the number of Shares sought, change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, imposes conditions to or amend any other condition of the Offer in addition any manner adverse to those set forth in Annex Ithe holders of the Shares (other than with respect to the Minimum Condition or insignificant changes or amendments) without the written consent of the Company; PROVIDED, extends HOWEVER, that if prior to the initial scheduled expiration date of the Offer beyond the Company shall have received a Higher POL Offer (as defined in Section 6.13 below) that the Company intends to accept, then at the Company's request Purchaser shall extend the Offer for fifteen business days in order to facilitate the consummation of such Higher POL Offer; and PROVIDED, FURTHER, that if on the initial scheduled expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(bmay be extended) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the all conditions to the Offer shall not have not been satisfied (other than conditions which are not capable of being satisfied)or waived, Acquisition may extend the Offer may be extended from time to time until December 31February 1, 2000, 1996 without the consent of the Company. In addition, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant Price may be increased and the Offer may be extended to the immediately preceding sentenceextent required by law in connection with such increase, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, case without the consent of the Company, (i) extend . Purchaser shall terminate the Offer for any period required by any rule or regulation upon termination of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered this Agreement pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceits terms.
(cb) As soon as practicable on the date the Offer is commenced, Parent and Acquisition Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the "Offer Documents") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to Documents will comply in all material respects with the Exchange Act provisions of applicable Federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of ParentParent and Purchaser further agrees to take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, Acquisition in each case as and to the extent required by applicable Federal securities laws. Each of Parent and Purchaser, on the one hand, and the Company Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or and misleading in any material respect, respect and Parent and Acquisition Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal Federal securities laws. The Company and its counsel shall be given reasonable the opportunity to review and comment on the Offer Documents prior to the filing thereof Schedule 14D-1 before it is filed with the SEC. In addition, Parent and Acquisition Purchaser agree to provide in writing the Company and its counsel in writing with any comments Parent, Acquisition Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Psicor Inc), Merger Agreement (Baxter International Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article IX, and that no event shall have occurred that, had and be continuing that would result the Offer referred failure to below been commenced, would give rise to a right to terminate the Offer pursuant to be satisfied of any of the conditions set forth in Annex I heretoA, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”))) the Offer no earlier than September 22, an offer 2010.
(b) The initial expiration date of the Offer shall be midnight (New York City time) on the later of (x) October 20, 2010 and (y) the date that is 20 business days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) (the "Offer") for all initial “Expiration Date” and any expiration time and date established pursuant to an extension of the outstanding shares Offer as so extended, also an “Expiration Date”).
(c) The obligations of common stockPurchaser to commence the Offer and accept for payment, par value $.01 per shareand pay for, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net any Public Shares tendered pursuant to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be are subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), conditions set forth in Annex A and (ii) the other non-waivable condition that pursuant to the Offer, prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Public Shares which constitutes at least a majority of the outstanding Public Shares (assuming the exercise of all outstanding Stock Options having an exercise price less than the Offer Price, and excluding from such calculation any Rollover Shares) (the “Minimum Condition”). The conditions to the Offer set forth in Annex I heretoA are for the sole benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances (including any action or inaction by Purchaser; provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition. Acquisition The failure of Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
(d) Purchaser expressly reserves the right (i) to increase the Offer Price and (ii) to waive any condition to the Offer or to make any other changes in modify the terms and conditions of the Offer; provided, however, except that (i) the Minimum Condition may not be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000that, without the consent of the Company, for such amount Purchaser shall not (A) reduce the number of time Public Shares subject to the Offer, (B) except as is reasonably necessary provided in Section 4.4, reduce the Offer Price, (C) add to cause such Offer Conditions the conditions set forth in Annex A or modify any condition set forth in Annex A in any manner adverse to be satisfied, no such extension to exceed ten business days. Without limiting the right holders of Acquisition to Public Shares or (D) change the form of consideration payable in the Offer.
(e) Purchaser may in its discretion (i) extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in for one or more periods consecutive increments of not more than ten business days each (but in no event later than December 31, 2000)each, if (i) at any otherwise scheduled Expiration Date of the Offer any of the conditions set forth to Purchaser’s obligation to purchase Public Shares in Annex I shall the Offer are not have been satisfied or waived at the scheduled or extended expiration date of the Offerwaived, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any the minimum period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable to the Offer and Offer, or (iiiii) if more than 80% but less than 90% make available a “subsequent offering period” in accordance with Rule 14d-11 of the outstanding Exchange Act.
(f) Purchaser shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the foregoing, Purchaser shall accept for payment, and pay for, all Public Shares shall have been validly tendered and not withdrawn pursuant to the Offer as promptly following the acceptance of such Public Shares for payment pursuant to the terms and subject to the conditions of the scheduled Offer and this Agreement. This paragraph shall not be deemed to impair, limit or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading restrict in any material respect, and Parent and Acquisition further agree manner the right of Purchaser to take all steps necessary terminate this Agreement pursuant to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsArticle IX.
Appears in 2 contracts
Sources: Share Exchange Agreement (Res Care Inc /Ky/), Share Exchange Agreement (Res Care Inc /Ky/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below --------- been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth terminated in Annex I heretoaccordance with Section 7.1, as promptly as reasonably practicable (but in no event later than five business days after the public announcement of the terms of this Agreementexecution hereof), but in no event later than one week after the date hereofPurchaser shall, Acquisition shall (and Parent shall cause Acquisition Purchaser to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), ) an offer (the "Offer") to purchase for cash any and all shares of the issued and outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Common Stock at a price for each Share of $16.0017.85 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to the conditions set forth in Annex A hereto. The obligation Company shall not tender Shares held by it or by any of Acquisition its subsidiaries pursuant to the Offer. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of the Purchaser to consummate the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I A hereto.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex A hereto. Acquisition expressly reserves the right to increase The Purchaser shall not decrease the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or decrease the number of Shares sought sought, amend the conditions to the Offer set forth in the Offer, imposes Annex A or impose conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000A, without the prior written consent of the Company, for Company (such amount of time as is reasonably necessary to cause such Offer Conditions consent to be satisfiedauthorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, no such extension the Purchaser shall be entitled to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition and shall, and Parent shall agrees to cause Acquisition the Purchaser to, extend the expiration date of Offer at any time up to 40 days in the Offer aggregate, in one or more periods of not more than ten 10 business days each (but in no event later than December 31, 2000)days, if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended initial expiration date of the Offer, or any extension thereof, any condition to the Offer is not satisfied or waived; provided however, that the Purchaser shall not be required to extend the Offer as provided in this sentence unless (iii) each such condition is reasonably capable of being satisfied, satisfied and (iiiii) the Company is in material compliance with all of its covenants in under this AgreementAgreement after the Purchaser shall have given the Company five business days prior written notice of any such non-compliance. In addition, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding without limiting the foregoing, Acquisition the Purchaser may, without the consent of the Company, (iA) extend the Offer for up to an additional 40 days, in one or more periods of not more than 10 business days, if any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable condition to the Offer is not satisfied or waived and (iiB) if more than 80% if, on the expiration date of the Offer, the Shares validly tendered and not withdrawn pursuant to the Offer are sufficient to satisfy the Minimum Condition (as defined in Annex A hereto) but equal less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration dateShares, extend the Offer on one occasion for an aggregate period of not more than five up to 10 business days beyond notwithstanding that all the latest expiration date that would otherwise be permitted under clause conditions to the Offer have been satisfied so long as Purchaser irrevocably waives the satisfaction of any of the conditions to the Offer (iother than in the case of paragraph (a) of this sentenceAnnex A hereto the occurrence of any statute, rule, regulation, judgment, order or preliminary or permanent injunction making illegal or prohibiting the consummation of the Offer) that subsequently may not be satisfied during any such extension of the Offer. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase in each case without the consent of the Company.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO14D-1") with respect to the Offer). The Schedule TO 14D-1 shall contain include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "Offer Documents") to ). The Offer Documents shall comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent, Acquisition Parent and the Company agrees Purchaser shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Each of Parent and the Purchaser, on the one hand, and the Company, on the other hand, shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or and misleading in any material respect, respect and Parent and Acquisition the Purchaser further agree to shall take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable an opportunity to review and comment on upon the Offer Documents Schedule 14D-1 (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Parent and Acquisition agree to the Purchaser shall provide in writing the Company and its counsel in writing with any comments that Parent, Acquisition Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentscomments and with copies of any written responses and telephonic notification of any verbal responses by Parent, Purchaser or their counsel.
(d) Parent shall provide or cause to be provided to Purchaser all of the funds necessary to purchase any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Societe Nationale D Exploitation Indus Des Tabacs Et Allumet), Merger Agreement (Consolidated Cigar Holdings Inc)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as reasonably practicable (but in any event no later than the tenth (10th) business day after the initial public announcement of the terms execution of this Agreement, but in no event later than one week after Agreement by Parent and the date hereof, Acquisition Company) Purchaser shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), ) an offer (the "Offer") to purchase for cash all shares of the issued and outstanding shares of common stockCommon Stock, par value $.01 .001 per shareshare (referred to herein as either the "Shares" or "Company Common Stock"), of the Company (individually a "Share" and collectivelyCompany, the "Shares") at a purchase price for each per Share of $16.00, 4.3545 net to the seller in cash (such price per Share, or such higher price per Share, if any, as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represent at least two-thirds of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex A hereto. The obligation obligations of Acquisition Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested Minimum Condition and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I A hereto. Acquisition The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to increase the Offer Price or to make amend any other changes in of the terms and conditions of the Offer; provided, however, provided that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and (iisuch consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof) no Purchaser shall not amend or waive the Minimum Condition, decrease the Offer Price or decrease the number of Shares sought, change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in paid pursuant to the Offer, imposes impose conditions to the Offer in addition to those set forth in Annex IA hereto, extends the expiration date or amend any other term or condition of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is manner adverse to the holders of the SharesShares or, except as provided below in this Section 1.1(a), extend the expiration date of the Offer. Subject to satisfaction the terms of the Offer and this Agreement and the satisfaction or waiver of the Offer conditions contained in Annex Ias of any expiration date, Acquisition shall Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as it is legally permitted to do so under by applicable law and law. Notwithstanding the foregoing, Purchaser shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled entitled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000Offer, without the consent of the Company, for such amount if at the initial expiration of the Offer, which will be 20 business days following commencement of the Offer, or any extension thereof, any condition to the Offer is not satisfied or waived, and at the Company's request, Purchaser shall extend the Offer from time to time, until June 19, 2001 if at the then scheduled expiration date all of the Offer conditions have not been satisfied or waived as is reasonably necessary to cause such Offer Conditions to be satisfied, no such permitted by this Agreement. Any extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to this Section 1.1(a) shall not, without the immediately preceding sentence, at written consent of the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend exceed the expiration date number of days that Purchaser reasonably believes will be necessary so that the Offer in one or more periods of not more than ten business days each (but in no event later than December 31conditions will be satisfied. In addition, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Purchaser may, without the consent of the Company, (i) extend any then scheduled expiration date of the Offer for any period required by any rule applicable rules, regulations, interpretations or regulation positions of the SEC or the staff thereof applicable to the Offer or for any period required by applicable law. If the Minimum Condition has been satisfied and all other conditions to the Offer have been satisfied or waived but fewer than 90% of the Shares have been validly tendered and not withdrawn as of any expiration date, Purchaser shall accept and purchase all of the Shares tendered in the initial offer period and may provide for a subsequent offering period (as contemplated by Rule 14d-11 under the Exchange Act) as long as providing for the subsequent offering period does not require the extension of the initial offer period under applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC") applicable ), which subsequent offering period shall not exceed 20 business days. In addition, the Offer Price may be increased and the Offer may be extended to the Offer and (ii) if more than 80% but less than 90% extent required by law in connection with such increase in each case without the consent of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceCompany.
(cb) As soon as practicable on the date the Offer is commenced, Parent and Acquisition Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO") with respect to the Offer). The Schedule TO shall contain will include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "Offer Documents") to ). Parent and Purchaser represent that the Offer Documents will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of ParentParent and Purchaser further agrees to take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of Shares, Acquisition in each case as and to the extent required by applicable federal securities laws. Each of Parent and Purchaser, on the one hand, and the Company Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and each of Parent and Acquisition Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the Schedule TO and the Offer Documents prior to the filing thereof before they are filed with the SEC. In addition, Parent and Acquisition Purchaser agree to provide in writing the Company and its counsel in writing with any comments or other communications that Parent, Acquisition Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or other communications.
Appears in 2 contracts
Sources: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Wolters Kluwer Us Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article V hereof and none of the events or conditions set forth in Annex I heretohereto (the “Tender Offer Conditions”) shall have occurred or be existing and not have been waived by Purchaser, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition toi) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"”) and within the meaning of The Securities Regulation Code of the Philippines (including the rules and regulation promulgated thereunder, the “SRC”), as promptly as reasonably practicable (but in any event no later than the Final Launch Date (as defined below)), commence (such date on which the offer commences in the United States, the “Launch Date”) an offer to purchase (or, if required by applicable Law commence separate offers in the United States and the Philippines to purchase) all outstanding Common Shares and ADSs at the Offer Price, (ii) as promptly as reasonably practicable (on or prior to the Launch Date), file a Tender Offer Statement on Schedule TO and all other necessary documents with the United States Securities and Exchange Commission (the "Offer"“SEC”) for and a Form 19-1 with the Philippine Securities and Exchange Commission (the “PSEC”) and make all announcements, deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act and under Rule 19 of the outstanding shares of common stockSRC, par value $.01 per sharein each case in connection with the Offer (together, of the Company (individually a "Share" such documents as may be amended and collectivelysupplemented, the "Shares"“Offer Documents”) at a price for each Share of $16.00and (iii) use reasonable efforts to consummate the Offer, net subject to the seller in cash (terms and conditions thereof. Company shall cooperate and give all reasonable assistance to Purchaser to enable Purchaser to comply with the "Offer Price")foregoing provisions, including promptly and accurately providing to Purchaser any and all information and documents reasonably requested by Purchaser for this purpose. The obligation of Acquisition Purchaser to accept for payment and to or pay for any Shares tendered shall pursuant to the Offer will be subject only to (i) the condition that at least two-thirds satisfaction or waiver by Purchaser of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition Company agrees that no Shares held by Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. For the purpose of this Agreement, the “Final Launch Date” shall be the date that is twenty-five (25) business days following public announcement of this Agreement; provided; however, if at 11:59 pm New York City time on the twenty-fifth business day following public announcement of this Agreement, either the SEC or PSEC has not granted in writing exemptive relief from compliance with, and taken a “no action” position with respect to, (with respect to the SEC) the rules promulgated under the Exchange Act and (with respect to the PSEC) the rules and regulations promulgated under the PCC and SRC, in connection with the Offer, as described in Schedule 1.1(a) attached hereto (the “No Action Relief”), but Purchaser (i) has submitted to the SEC or PSEC a draft or final request for such relief and (ii) is using all reasonable efforts to pursue the No Action Relief, such time period shall automatically extend until the date that is five (5) business days after Purchaser has received the No Action Relief; provided further that if, on what would otherwise be the Final Launch Date, Purchaser is still preparing or finalizing the Offer Documents and/or making or finalizing preparations to commence the Offer and is using all reasonable efforts to do so, the Final Launch Date shall automatically extend for an additional ten (10) business days. The obligation of the Purchaser to commence the Offer as provided in this Section 1.1(a) is subject to Purchaser not being entitled to terminate this Agreement pursuant to Section 5.4(d). Following the date hereof, the parties hereto shall use their reasonable efforts to commence the Offer as promptly as reasonably practicable.
(b) Purchaser expressly reserves the right to increase the Offer Price amend or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) waive any of the conditions set forth in Annex I hereto (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided that without the prior written consent of Company, Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer, amend the Minimum Condition (as defined in Annex I hereto) or amend any other term of the Offer in any manner adverse to the holders of Shares. The Offer shall remain open at least until the date that is 20 business days after the commencement of the Offer (the “Expiration Date”), unless Purchaser shall have been extended the period of time for which the Offer is open in accordance with the terms of this Agreement, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. If, at any Expiration Date, any of the Tender Offer Conditions are not satisfied or waived at the scheduled or extended expiration date of the Offerby Purchaser, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) Purchaser may extend the Offer for any period required by any rule or regulation from time to time; provided, however, Purchaser may not extend the Offer beyond the 60th day following the Launch Date without Company’s prior written consent. Subject to the terms of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% this Agreement and the satisfaction of all the Tender Offer Conditions as of the outstanding Expiration Date, Purchaser will accept for payment and pay for all Shares shall have been validly tendered and not validly withdrawn pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable but in any event no later than ten (10) business days after the Expiration Date (the date that Purchaser accepts for payment all Shares validly tendered and not validly withdrawn pursuant to the Offer shall be referred to as the “Acceptance Date”), the date that Purchaser pays for such Shares, which shall in any event occur no later than ten (10) business days after the Acceptance Date, shall be referred to as the “Payment Date” and for the avoidance of doubt, the Payment Date for the Offer in respect of the ADSs will be as promptly as practicable, subject to applicable Law, on the date Acceptance Date and references in this Agreement to Payment Date relating to ADSs will be considered to mean the relevant Acceptance Date). Without the prior written consent of Company, Purchaser shall not accept for payment or pay for any Shares in the Offer is commencedif, Parent and Acquisition shall file as a result, Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Condition (as defined in Annex I). Purchaser may provide a subsequent offering period after the Expiration Date, in accordance with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with Rule 14d-11 under the Exchange Act and Rule 19 under the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and SRC immediately following the Company agrees promptly to correct any information provided by it for use in Acceptance Date on substantially the same terms as the Offer Documents if and to keep such subsequent offer open for at least 20 business days after the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt commencement of such commentssubsequent offering period (the “Subsequent Offering”). As used in this Agreement, a “business day” shall mean any day of the year other than a Saturday, Sunday or any other day on which banks located in New York, New York USA or Makati City or Manila, Philippines are generally closed for business.
Appears in 2 contracts
Sources: Acquisition Agreement (Ayala Corp), Acquisition Agreement (eTelecare Global Solutions, Inc.)
The Offer. (a) Provided that nothing Subject to this Agreement not having been terminated in accordance with the provisions of Section 8.1 hereof, Purchaser shall, and Parent shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretocause Purchaser to, as promptly as reasonably practicable after practicable, but in no event later than five business days from the date of the public announcement of the terms of this Agreement or the Offer, commence an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "OfferOFFER") for all of the outstanding shares of common stock, $1.00 par value $.01 per sharevalue, of the Company (individually a "Share" and including the common stock purchase rights referred to in Section 6.12 hereof (collectively, the "SharesSHARES")) outstanding immediately prior to the consummation of the Offer, subject to the conditions set forth in Exhibit A hereto (the "CONDITIONS"), at a price for each Share of $16.0029.00 per Share, net to the seller in cash (cash. Subject to this Agreement not having been terminated in accordance with the "Offer Price"). The obligation provisions of Acquisition Section 8.1 hereof and to the Conditions, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested validly tendered pursuant to the Offer, and unvested Company Stock Options that vest not withdrawn prior to the Effective Timeexpiration date of the Offer, as promptly as practicable following the expiration date of the Offer. If all of the Conditions are not satisfied on the initial expiration date of the Offer, and the Agreement has not been terminated in accordance with the provisions of Section 8.1, Parent shall, and shall cause Purchaser to, extend (and re-extend) the Offer to provide time to satisfy such Conditions provided that Purchaser or Parent may but excluding any Shares held by in no event shall be obligated to extend the Company or any period of time the Offer is open beyond August 15, 1997 or, if Purchaser has elected, in its subsidiaries) be validly tendered judgment, to extend the Offer beyond August 15, 1997 pursuant to the last sentence of this Section 1.1(a), November 15, 1997 (such applicable date being known as the "Minimum ConditionFinal Termination Date"), and (ii) the other conditions set forth in Annex I hereto. Acquisition Purchaser expressly reserves the right to increase the Offer Price or to make any other changes in amend the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to no amendment may be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if made which (i) any decreases the price per Share or changes the form of the conditions set forth consideration payable in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable decreases the number of being satisfiedShares sought, and or (iii) Company is in material compliance with all of its covenants in this Agreement, subject imposes additional conditions to the cure provisions Offer or amends any other term of paragraph the Offer in any manner adverse to the holders of Shares (b)(iiit being understood that extensions of the Offer as contemplated by this Section 1.1(a) are not adverse to the holders of Annex I. Shares). Notwithstanding the foregoing, Acquisition mayPurchaser shall, without in its judgment, have right to extend and re-extend the consent Offer, from time to time, but in no event beyond November 15, 1997, if it believes that such extension is advisable in order to facilitate the orderly transition of the business of the Company and preserve and maintain the Company's business relationships.
(b) The Company will not, nor will it permit any of its Subsidiaries (as defined below) to, tender into the Offer any Shares beneficially owned by it. For purposes of this Agreement, "SUBSIDIARY" means, as to any Person (as defined below), any corporation, limited liability company, partnership or joint venture, whether now existing or hereafter organized or acquired: (i) extend in the Offer for any period required by any rule or regulation case of a corporation, of which at least a majority of the Securities and Exchange Commission outstanding shares of stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (other than stock having such voting power solely by reason of the "SEC"happening of any contingency) applicable to is at the Offer and time directly or indirectly owned or controlled by such Person and/or one or more of its Subsidiaries or (ii) if more than 80% but less than 90% in the case of a limited liability company, partnership or joint venture, in which such Person or a Subsidiary of such Person is a managing member, general partner or joint venturer or of which a majority of the outstanding Shares shall have been validly tendered pursuant to partnership or other ownership interests are at the Offer as time owned by such Person and/or one or more of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) its Subsidiaries. For purposes of this sentenceAgreement, "PERSON" means any individual, corporation, company, voluntary association, limited liability company, partnership, joint venture, trust, unincorporated organization or other entity.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BBN Corp), Merger Agreement (Gte Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen terminated in accordance with Section 8.01, had and subject to the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions Company having complied with its obligations set forth in Annex I heretoSection 1.02(b), as promptly as reasonably practicable Merger Sub shall, and Acquiror shall cause Merger Sub to, on or before the date that is ten (10) Business Days after the public announcement date of the terms execution of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”))) the Offer.
(b) The obligations of Merger Sub to, an offer (the "Offer") for all and of the outstanding shares of common stockAcquiror to cause Merger Sub to, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares validly tendered shall be and not validly withdrawn pursuant to the Offer are subject only to the satisfaction or waiver (iif permitted by Section 1.01(c) the condition that at least two-thirds below) of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves (the “Offer Conditions”) and are not subject to any other conditions (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement). On the terms and subject to the Offer Conditions, Merger Sub shall, and Acquiror shall cause Merger Sub to, (x) consummate the Offer in accordance with its terms and (y) accept and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) as soon as practicable after the Expiration Date (as defined below) and in compliance with applicable Law (as defined below). The acceptance for payment of Shares pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Acquiror shall provide, or cause to be provided, to Merger Sub on the date of the Offer Closing all funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and this Agreement.
(c) The Offer Conditions (other than the Minimum Condition) are for the sole benefit of Acquiror and Merger Sub, and, to the extent permitted by applicable Law, Acquiror and Merger Sub may waive, to the extent permitted by applicable Law, in whole or in part, any Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Minimum Condition, which may be waived by Acquiror and Merger Sub only with the prior written consent of the Company. Acquiror and Merger Sub expressly reserve the right to waive, to the extent permitted by applicable Law, any of the Offer Conditions, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; providedprovided that, howeverunless otherwise provided in this Agreement or previously approved by the Company in writing, that Acquiror and Merger Sub shall not: (i) subject to Section 3.07, decrease the Minimum Condition may be amended Offer Price or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Shares sought to be purchased in the Offer, imposes (iii) impose conditions to on the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Conditions or amend any Offer (except as provided Condition in (b), below) or makes any other change which a manner that is adverse to the holders of Shares, (iv) waive or amend the Shares. Subject to satisfaction of the conditions contained in Annex IMinimum Condition, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(bv) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (amend any other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date term of the Offer in one a manner that is adverse to the holders of Shares, (vi) extend or more periods of not more than ten business days each otherwise change the Expiration Date (but in no event later than December 31, 2000as defined below) except as required or permitted by Section 1.01(e), if or (ivii) any provide a “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceAct.
(cd) As soon as practicable on On the date the Offer is commenced, Parent Merger Sub shall, and Acquisition Acquiror shall cause Merger Sub to, file with the SEC U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The , which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO shall contain as an exhibit or incorporate by reference and the documents included therein pursuant to which the Offer to Purchase (will be made, together with any exhibits, supplements or portions thereofamendments thereto, the “Offer Documents”) and forms cause the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable Law. Subject to Section 6.02, the Company hereby consents to the inclusion of the related letter recommendation of transmittal the Company Board that the Company’s stockholders accept the Offer and summary advertisementtender all of their Shares pursuant to the Offer (the “Company Board Recommendation”) in the Offer Documents. Parent Merger Sub shall, and Acquisition agree that they Acquiror shall cause the Schedule TOMerger Sub to, cause the Offer to Purchase Documents and all amendments or supplements thereto (which together constitute the "Offer Documents") filing and dissemination thereof to comply in all material respects with the Exchange Act requirements of applicable Law. The Company shall promptly furnish to Acquiror and Merger Sub all information concerning the Company and the rules holders of Shares that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.01(d), including communication of the Offer to the record and regulations thereunder and other Applicable Lawsbeneficial holders of Shares. Each of Parent, Acquisition and the Company parties agrees to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and Parent Acquiror and Acquisition Merger Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities lawsLaw. The Company Acquiror and its counsel Merger Sub shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel in writing with any written comments Parent(and shall orally describe any oral comments) that Acquiror, Acquisition Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the holders of Shares, or responding to any comments of the SEC with respect to the Offer Documents, Acquiror and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Acquiror and Merger Sub shall give reasonable consideration to any comments provided by the Company. Acquiror and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(e) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 1.01(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.01(e) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 1.01(e) or applicable Law, the “Expiration Date”). Notwithstanding the foregoing, (i) if, on the then-effective Expiration Date, any of the Offer Conditions shall not have been satisfied or waived in accordance with this Agreement, Merger Sub shall, and Acquiror shall cause Merger Sub to, extend the Offer for successive periods of not more than twenty (20) Business Days per extension (as defined below) (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree, in order to permit the satisfaction of the Offer Conditions (it being understood, for the avoidance of doubt, that the Offer shall not be extended pursuant to this clause (i) if all Offer Conditions have been satisfied or waived in accordance with this Agreement), and (ii) Merger Sub shall, and Acquiror shall cause Merger Sub to, extend the Offer for any period required by any applicable Law, rule, regulation, interpretation or position of the SEC or its staff or rules of the Nasdaq Stock Market applicable to the Offer; provided that, in the case of clauses (i) and (ii), Merger Sub shall not in any event be required to, and without the Company’s prior written consent shall not, extend the Offer beyond the Outside Date (as defined below). Nothing in this Section 1.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Acquiror or Merger Sub to terminate this Agreement pursuant to Section 8.01. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Acquiror shall cause Merger Sub to, promptly (and in any event within one (1) Business Day of such termination) terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, prior to the acceptance for payment of Shares tendered in the Offer, Merger Sub shall, and Acquiror shall cause Merger Sub to, promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof.
Appears in 2 contracts
Sources: Merger Agreement (News Corp), Merger Agreement (Move Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article X and provided that none of the conditions events set forth in Annex I heretohereto shall have occurred and be continuing (and shall not have been waived by Parent), unless otherwise agreed by Parent and the Company, as promptly as reasonably practicable after the public announcement of the terms execution of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) Merger Sub to commence (within the meaning of as defined in Rule 14d-2 promulgated under the Securities Exchange Act of 1934 (the "Exchange Act"))) the Offer to purchase each issued and outstanding share of Company Common Stock in exchange for, an offer (at the "Offer") for all election of the outstanding shares of common stockholder thereof, par value $.01 per share, of the Company either: (individually i) a "Share" and collectively, the "Shares") at a price for each Share net amount of $16.00, net to the seller 26.50 in cash (the "Offer PriceCash Consideration"), or (ii) 0.3256 of a share of Parent Common Stock (the "Stock Consideration" and, together with the Cash Consideration, the "Offer Consideration"); provided, however, that if the number of Tendered Cash Election Shares exceeds 30% of the aggregate number of shares of Company Common Stock issued and outstanding immediately prior to the Acceptance Date (the "Maximum Cash Election Number"), then each Tendered Stock Election Share shall be exchanged for the Stock Consideration and each Tendered Cash Election Share shall be exchanged for (1) an amount in cash, without interest, equal to the product of (x) the Cash Consideration and (y) a fraction (the "Cash Fraction"), the numerator of which shall be the Maximum Cash Election Number and the denominator of which shall be the total number of Tendered Cash Election Shares, and (2) a number of shares of Parent Common Stock equal to the product of (x) the Stock Consideration and (y) a fraction equal to one minus the Cash Fraction. In the event the number of Tendered Cash Election Shares is equal to or less than the Maximum Cash Election Number, all Tendered Cash Election Shares shall be exchanged for the Cash Consideration and all Tendered Stock Election Shares shall be exchanged for the Stock Consideration. Subject to the foregoing provisions of this Section 2.01(a), stockholders of the Company shall be permitted to elect to receive the Cash Consideration for a portion of their shares of Company Common Stock and the Stock Consideration for another portion of their shares of Company Common Stock. Stockholders who validly tender shares of Company Common Stock but fail to make any election shall be deemed to have elected to receive the Stock Consideration for all shares of Company Common Stock validly tendered.
(b) The obligation of Acquisition to accept for payment and to pay for any Shares tendered Offer shall be subject only to (i1) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Shares on Offer, prior to the expiration of the Offer, and not withdrawn, a fully- diluted basisnumber of shares of Company Common Stock that, together with the Shares then shares of Company Common Stock owned by Parent and/or Acquisitionand Merger Sub, (including for purposes represents at least 50.1% of such calculation all Shares issuable upon exercise the shares of all vested and unvested Company Common Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered outstanding on a fully diluted basis (the "Minimum Condition"), ) and (ii2) the other conditions set forth in Annex I hereto. Acquisition Upon termination of the Merger Agreement, the Offer shall immediately expire and terminate without any shares of Company Common Stock being purchased thereunder. Merger Sub expressly reserves the right to increase waive any of the conditions to the Offer Price or and to make any other changes change in the terms and of or conditions of to the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with that, without the prior written consent of the Company and (ii) Company, no change may be made by Merger Sub that (i) decreases the consideration payable in the Offer; (ii) changes the form of consideration payable in the Offer to be paid, a form other than cash or shares of Parent Common Stock; (iii) decreases the price per Share aggregate amount of Cash Consideration available in the Offer or changes the relative amount of Cash Consideration available in the Offer; (iv) reduces the number of Shares shares of Company Common Stock sought in the Offer, ; (v) imposes conditions to the Offer in addition to those set forth in Annex I, extends ; (vi) modifies or waives the expiration date of the Offer beyond the initial expiration date of the Offer Minimum Condition; (vii) except as provided in below, changes the date on which the Offer is scheduled to expire; or (b), belowviii) or makes any other change which that is adverse to the holders of Company Common Stock or to holders that have elected a particular form of Offer Consideration. Notwithstanding the Shares. Subject to satisfaction foregoing, unless the Company otherwise consents prior thereto, Merger Sub shall (or, in the case of clause (iii) below, shall at its option have the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to right to) extend the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
one or more periods (bnot in excess of ten business days each) The Offer (i) beyond the scheduled expiration date, which shall initially be scheduled to expire 20 25 business days following the commencement thereof. Ifof the Offer, at a then-scheduled expiration date, the conditions up to the Offer have not been satisfied (other than conditions which are not capable of being satisfied)Termination Date, Acquisition may extend the Offer from time to time until December 31if, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, any of the conditions to the Offer shall not have been satisfied or, to the extent permitted, waived, until such conditions are satisfied or, to the extent permitted, waived, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (SEC or the "SEC") staff thereof applicable to the Offer and or any period required by applicable Law, or (iiiii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to the Offer have been satisfied or waived, but the number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer equals more than 80%, but less than 90% of the outstanding shares of Company Common Stock on a fully diluted basis; provided, however, that (x) Parent and Merger Sub shall not be obligated to extend the Offer pursuant to clause (i) of this sentence (but may elect to do so in accordance with this Section 2.01(b), provided that no such extension or series of extensions of more than 10 business days in the aggregate may be made without the prior written consent of the Company) if the Minimum Condition is not satisfied at the time such extension would otherwise be required, so long as the conditions set forth in clauses (ii), (iii) and (iv) of Annex I have been satisfied, and Parent has publicly announced such fact and its intention not to extend the Offer at least two business days prior to the date such extension would, but for this proviso, otherwise have been required and (y) in the event Parent or Merger Sub elects to extend the expiration date pursuant to clause (iii), Parent and Merger Sub shall be deemed to have irrevocably waived all of the conditions to the Offer set forth in paragraphs (a) through (g) of Annex I. Except as provided in clause (iii) of the previous sentence, Parent and Merger Sub shall not be permitted to extend the Offer without the prior written consent of the Company at the time that all conditions to the Offer have been satisfied or, to the extent permitted, waived. Parent and Merger Sub shall deliver written notice to the Company (the "Acceptance Notice") of its intention to accept for payment shares of Company Common Stock pursuant to the Offer one business day in advance of the proposed Acceptance Date. Subject to the foregoing and clause (c) below, and upon the terms and subject to the conditions of the Offer, Parent shall cause Merger Sub to accept for payment or exchange, as promptly as practicable after the expiration of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Notwithstanding anything to the contrary contained in this Article II, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of shares of Company Common Stock pursuant to the Offer, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu of any such fractional shares, the Offer Exchange Agent shall, as soon as practicable after the Acceptance Date, aggregate all such fractional shares and such fractional shares shall be sold by the Offer Exchange Agent as agent for the holders of such fractional shares, at the then prevailing price on the NYSE, all in the manner provided hereinafter. Until the net proceeds of such sale or sales have been distributed to the holders of fractional shares, the Offer Exchange Agent shall retain such proceeds in trust for the benefit of such holders as part of the Offer Exchange Fund. The sale of the fractional shares by the Offer Exchange Agent shall be executed on the NYSE or through one or more member firms of the NYSE and will be executed in round lots to the extent practicable. The Offer Exchange Agent will determine the portion, if any, of the net proceeds of such sale to which each holder of fractional shares is entitled by multiplying the amount of the aggregate net proceeds of the sale of the fractional shares by a fraction the numerator of which is the amount of fractional shares to which such holder is entitled and the denominator of which is the aggregate amount of fractional shares to which all holders of fractional shares are entitled. The Company shall pay all commissions, transfer taxes and other out-of-pocket transaction costs, including the expenses and compensation of the Offer Exchange Agent, incurred in connection with such sale of shares of Parent Common Stock.
(c) Notwithstanding anything else to the contrary contained in this Agreement, and notwithstanding the satisfaction of the conditions set forth on Annex I, Parent shall not (unless the Company notifies Parent otherwise) be permitted to accept for payment or exchange any shares of Company Common Stock pursuant to the Offer if, at such time, (i) Parent shall have breached or failed to perform in any material respect its obligations, covenants or agreements under the Agreement, (ii) the representations and warranties of Parent or Merger Sub contained in the Agreement that are qualified by reference to a Parent Material Adverse Effect shall not have been true and correct when made or as of the Acceptance Date as if made at or at and as of such time (other than such representations and warranties which by their terms address matters only as of another specified date, which shall be true and correct only as of such date), (iii) the representations and warranties of Parent or Merger Sub contained in the Agreement that are not so qualified shall not have been true and correct when made or as of the Acceptance Date as if made at or at and as of such time (other than representations and warranties which by their terms address matters only as of another specified date, which shall be true and correct only as of such date), except, in the case of this clause (iii) only, for such inaccuracies as have not resulted, or are not reasonably likely to result, in a Parent Material Adverse Effect, or (iv) Parent shall have failed to deliver a certificate signed by an executive officer of Parent, dated the Acceptance Date, to the effect that, to such officer's knowledge, the conditions set forth in clauses (i) through (iii) of this subsection (c) have been satisfied.
(d) As soon as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent shall, and Acquisition Parent shall cause Merger Sub to, (i) file with the SEC a Tender Offer Statement on Schedule TO relating to the Offer, which shall include an offer to purchase and letter of transmittal/election form and such other ancillary documents as shall be required by applicable Law (together with all any amendments and or supplements thereto, and including all exhibits thereto, the "Schedule TO") ; and, together with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase Registration Statement (or portions thereofas defined below) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, such other documents pursuant to which the Offer to Purchase and all amendments or supplements thereto (which together constitute will be made, the "Offer Documents"), (ii) to comply in all material respects file with the Exchange SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Offer (the "Offer Registration Statement") and (iii) disseminate the Offer Documents to holders of Company Common Stock. Each of the Company and Parent shall use their reasonable efforts to have the Offer Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof with the SEC and to keep the rules and regulations thereunder and other Applicable LawsOffer Registration Statement effective as long as necessary to complete the Offer. Each of Parent, Acquisition Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent shall, and Parent and Acquisition further agree to shall cause Merger Sub to, take all steps necessary to cause the Schedule TO and the Offer Registration Statement as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be be, at such time as reasonably agreed by Parent and the Company, disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given reasonable an opportunity to review and comment on the Offer Documents prior to the filing thereof their being filed with the SECSEC or disseminated to the holders of shares of Company Common Stock. Parent shall, and Acquisition agree to Parent shall cause Merger Sub to, provide in writing the Company and its counsel with any comments Parent, Acquisition Parent and Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel an opportunity to participate in the response of Parent or Merger Sub to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Unilab Corp /De/)
The Offer. (a) Provided that nothing As promptly as practicable (but in no event later than two (2) business days (as defined in Rule 14d-1 promulgated under the Exchange Act) ("Business Days") after the public announcement of the execution hereof), the Purchaser and Parent shall have occurred that, had amend the Offer referred to below been commencedreflect the transactions contemplated by this Agreement and certain other matters which are not inconsistent with the terms of this Agreement. The Purchaser may designate another direct or indirect subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(c) under the Exchange Act) in the Offer, would give rise may assign all or any part of its rights under this Agreement (including the right to be a constituent corporation in the Merger) to such subsidiary or may convert to a right to terminate the Offer corporation pursuant to the provisions of the Delaware General Corporation Law (the "DGCL"), in any of which case references herein to Purchaser shall be deemed to apply to such subsidiary or such corporation and such subsidiary or corporation shall be made a party signatory hereto, in each case, unless any such action would require any filing, permit, authorization, consent or approval as may be required under, and other applicable requirements of, the HSR Act or any similar statute or regulation. The Company shall not tender Shares held by it or by any of its subsidiaries pursuant to the Offer. Subject to Section 1.1(b), the Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject only to the prior satisfaction or waiver of the conditions set forth in Annex I A hereto, consummate the Offer and accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law.
(b) As promptly as reasonably practicable (but in no event later than two (2) Business Days after the public announcement of the execution hereof), Parent and the Purchaser shall amend the Offer to Purchase (as so amended, the "Amended Offer to Purchase") to contain the terms set forth in this Agreement and the conditions set forth in Annex A hereto, and the Amended Offer to Purchase shall reflect an increase in the per Share price to paid in the Offer to $9.50 per Share and provide for an expiration date (as such date may be extended in accordance with the provisions of this AgreementSection 1.1(b), but in no event later than one week after the "Expiration Date"), of ten (10) Business Days from the date hereof, Acquisition shall (the Amended Offer to Purchase is first disseminated to security holders of the Company. The Purchaser and Parent shall cause Acquisition the Amended Offer to Purchase to be disseminated to the security holders of the Company within two (2) Business Days after the date of this Agreement. The Purchaser shall not, and Parent shall cause the Purchaser not to, decrease the Offer Price or change the form of consideration to be paid in the Offer or decrease the number of Shares sought to be purchased in the Offer, amend the conditions to the Offer set forth in Annex A or impose conditions to the Offer other than those set forth in Annex A, in each case, without the prior written consent of the Special Committee, which the Special Committee may withhold in its sole discretion. Notwithstanding the foregoing, (i) commence the Purchaser shall extend the Offer (within A) for any period required by any rule, regulation, interpretation or position of the meaning SEC or the staff thereof applicable to the Offer or any period required by applicable law, and (B) in ten (10) Business Day increments, up to the thirtieth (30th) Business Day after the date the Amended Offer to Purchase is first disseminated to security holders, if on the then current Expiration Date, any condition to the Offer shall not have been satisfied or waived; provided, however, that the Purchaser shall not so extend such then current Expiration Date if so directed by the Special Committee, and (ii) notwithstanding the foregoing, the Purchaser may from time to time, without the consent of the Special Committee, extend the Offer (A) if, on the then current Expiration Date, any condition to the Offer shall not have been satisfied or waived, for the shortest period of time that Purchaser reasonably believes is necessary to satisfy such condition, such period not to exceed ten (10) Business Days, provided, that neither the Purchaser nor Parent shall be in material breach of any of their respective obligations under this Agreement, (B) providing for a "subsequent offering period" not to exceed twenty (20) Business Days to the extent permitted under, and in compliance with, Rule 14d-2 14d-11 promulgated under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer or (the "Offer"C) for an aggregate period not to exceed five (5) Business Days, if all of the outstanding conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn (when added to (x) all shares of Class A Common Stock owned by Parent, Purchaser and any other director or indirect subsidiary of Parent, and (y) all shares of Class A Common Stock that are issuable upon conversion of the shares of Class B common stock, par value $.01 per share, of the Company (individually a "Share" owned by Parent, Purchaser and collectively, the "Shares") at a price for each Share any other direct or indirect subsidiary of $16.00, net to the seller in cash Parent (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basisClass B Common Stock," and, together with the Shares then owned by Parent and/or AcquisitionClass A Common Stock, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum ConditionCompany Common Stock"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as number of the scheduled or extended expiration date, extend the Offer for an aggregate period shares of not more than five business days beyond the latest expiration date Class A Common Stock that would otherwise be permitted under clause (i) then outstanding assuming the conversion of this sentencesuch Class B Common Stock.
(c) As soon as practicable on On the date the Offer to Purchase is commencedamended, Parent and Acquisition the Purchaser shall file with the SEC a Tender Offer Statement on (i) an amended Schedule TO (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO/A") with respect to the amended Offer. , and (ii) an amended Rule 13e-3 Transaction Statement on Schedule 13E-3 promulgated under the Exchange Act with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 13E-3/A") which shall be filed as a part of the Schedule TO/A. The Schedule TO TO/A shall contain as an exhibit or shall incorporate by reference reference, among other things, the Amended Offer to Purchase and an amended form of letter of transmittal (or portions thereof) and forms of the Schedule TO/A, the Amended Offer to Purchase, the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO13E-3/A, the Offer to Purchase together with any amendments and all amendments or supplements thereto (which together constitute thereto, collectively, the "Offer Documents") to ). The Offer Documents shall comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to the Company's projections set forth in the Offer to Purchase or information regarding the Company in the Offer Documents which was previously included in any SEC Document (as defined herein) filed by the Company and regulations thereunder and other Applicable Lawsnot superseded by a later SEC Document filed by the Company as of the date of inclusion. Each of ParentParent and the Purchaser shall further take all steps necessary to cause the Offer Documents to be filed with the SEC and shall cause the Offer Documents to be disseminated to holders of Shares, Acquisition in each case as and to the extent required by applicable federal securities laws. Each of Parent and the Purchaser shall promptly correct, and the Company agrees to notify the Purchaser promptly to correct as to, any information provided by it for use regarding any of them respectively in the Offer Documents if and to the extent that such information it shall have become false or and misleading in any material respect, respect and Parent and Acquisition the Purchaser further agree to shall take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel counsel, and the Special Committee and its counsel, shall be given a reasonable opportunity to review and comment on upon the Offer Documents Schedule TO/A (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Parent shall, and Acquisition agree to shall cause the Purchaser to, provide in writing the Company and its counsel counsel, and the Special Committee and its counsel, in writing with any comments or other communications that Parent, Acquisition Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentscomments or other communications, and with copies of any written responses and telephonic notification of any verbal responses by Parent, Purchaser or their counsel.
(d) Parent shall provide or cause to be provided to Purchaser on a timely basis all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Delco Remy International Inc), Merger Agreement (Citigroup Inc)
The Offer. (a) (i) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article VIII and that none of the conditions events set forth in Annex I heretoParagraph (2) of Exhibit A hereto shall exist or have occurred and be continuing, as promptly as reasonably practicable after the public announcement of the terms of this AgreementPurchaser shall, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition Purchaser to) , use reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”))) prior to the fifth (5th) Business Day after the date hereof (but in no event later than the tenth (10th) Business Day after the date hereof, an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of provided that the Company (individually a "Share" shall be prepared to disseminate to its shareholders its Schedule 14d-9 and collectively, Schedule 14f-1 within such time period) the "Shares") Offer to purchase all outstanding Shares at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation obligations of Acquisition Purchaser (and of Parent to cause Purchaser) to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds satisfaction or waiver of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other those conditions set forth in Annex I heretoExhibit A hereto (the “Offer Conditions”). Acquisition The initial expiration date (the “Initial Expiration Date”) of the Offer shall be the twentieth (20th) Business Day following (and including the day of) the commencement of the Offer. Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to increase the time in its sole discretion to waive any Offer Price Condition or to make any other changes in modify or amend the terms and conditions of the Offer; provided, howeverexcept that, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of the Company and (ii) no Company, Purchaser shall not decrease the Offer Price or change may be made that changes the form of the consideration payable in the Offer, or, except pursuant to be paidSection 1.1(b), decreases the price per Share or (A) decrease the number of Shares sought in pursuant to the Offer, imposes conditions (B) amend or waive the Minimum Tender Condition (as defined in Exhibit A), (C) add to the Offer in addition to those conditions set forth on Exhibit A, (D) modify the conditions set forth on Exhibit A in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which a manner that is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
or (bE) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one except as required or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (ipermitted by Section 1.1(a)(ii) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence).
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Genelabs Technologies Inc /Ca), Merger Agreement (Glaxosmithkline PLC)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as As promptly as reasonably practicable after the public announcement of the terms of this Agreementpracticable, but in no event later than one week five business days after the date hereofpublic announcement of the execution of this Agreement, Acquisition shall (the Purchaser shall, and the Parent shall cause Acquisition the Purchaser to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an a tender offer (the "Offer") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock (the "Shares"), together with the associated rights, if any, to purchase Series A participating Cumulative Preferred Stock, par value $.01 per share, of share ("Series A Shares"; and together with the Company (individually a "Share" and collectivelyShares, the "SharesSecurities") at a price for each Share of not less than $16.00, 11.625 per Security net to the seller in cash cash; it being understood that the Offer will not apply to the 179,656 Shares (or associated rights) previously held by the "Offer Price")Trust which are being returned to the Company and canceled as described in the third recital to this Agreement. The obligation obligations of Acquisition the Purchaser and the Parent to consummate the Offer and to accept for payment and to pay for any Shares purchase the Securities tendered shall be subject only to (i) the conditions set forth in Annex A hereto. The Purchaser shall not without the Company's prior written consent reduce the price per Security or the number of Securities sought to be purchased or modify the form of consideration to be received by holders of the Securities in the Offer, increase the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that clause (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form first sentence of consideration to be paidAnnex A hereto, decreases the price per Share or the number of Shares sought in the Offer, imposes impose additional conditions to the Offer in addition to those set forth in Annex I, extends the expiration date or amend any term of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner materially adverse to the holders of the SharesSecurities. Subject only to satisfaction the conditions of the conditions contained Offer set forth in Annex IA, Acquisition the Purchaser shall, and the Parent shall accept cause the Purchaser to, pay for payment all Shares of the Securities validly tendered and not withdrawn pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterlegally permissible.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, the Parent and Acquisition shall the Purchaser will file with the SEC Securities and Exchange Commission (the "Commission") a Tender Offer Statement on Schedule TO 14D-1 (together with all supplements or amendments and supplements thereto, and including all exhibits theretoexhibits, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act ). The Parent and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and Purchaser shall give the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to of the Offer Documents promptly after receipt with the Commission or to the dissemination of such comments.the Offer Documents to the stockholders of the
Appears in 2 contracts
Sources: Merger Agreement (Cambrex Corp), Merger Agreement (Cambrex Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1, and none of the events or conditions in clause (c) of Annex I shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoand be continuing, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, date hereof (but in no event later than one week eleven (11) Business Days after the date hereofof the initial public announcement of this Agreement), Acquisition shall (the Purchaser shall, and Parent shall cause Acquisition the Purchaser to) commence (, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act")”), an offer the Offer.
(b) Subject to (i) there being validly tendered in the "Offer"Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, together with the number of Shares, if any, then owned of record by Parent or the Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of all outstanding Shares (determined on a Fully Diluted Basis) for all entitled to vote (A) in the election of directors or (B) upon the adoption of this Agreement and approval of the outstanding shares of common stockMerger, par value $.01 per share, of on the Company date Shares are accepted for payment (individually a "Share" and collectively, the "Shares"“Minimum Condition”); and (ii) at a price the satisfaction or waiver by Parent or the Purchaser of the other conditions and requirements set forth in Annex I, the Purchaser shall, and Parent shall cause the Purchaser to, accept for each Share of $16.00, net payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the seller in cash Offer as promptly as practicable after the Purchaser is legally permitted to do so under applicable Law (the "Offer Price"date and time of acceptance for payment, the “Acceptance Time”). The obligation of Acquisition Parent shall provide or cause to be provided to Purchaser on a timely basis funds sufficient to purchase and pay for any and all Shares that Purchaser becomes obligated to accept for payment and purchase pursuant to pay for any Shares the Offer. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder of such Share in cash, without interest, subject only to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(ic) The Offer shall be made by means of an offer to purchase (the condition “Offer to Purchase”) that at least two-thirds describes the terms and conditions of the Shares on a fully- diluted basisOffer in accordance with this Agreement, together with including the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested conditions and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions requirements set forth in Annex I hereto. Acquisition I. Parent and the Purchaser expressly reserves reserve the right to increase the Offer Price Price, waive any condition to the Offer (except the Minimum Condition) 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, the Purchaser shall not (i) decrease the Minimum Condition may be amended or waived only with Offer Price payable in the prior written consent of the Company and Offer, (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend or modify the other conditions to the Offer in addition to those set forth in Annex II in a manner adverse to the holders of Shares, extends (vi) extend the expiration date Expiration Date other than in accordance with this Agreement, or (vii) amend any other term of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. .
(d) Subject to satisfaction the provisions of this Agreement, unless extended in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight (Eastern time) on the date (the “Initial Expiration Date”) that is twenty (20) Business Days following the commencement of the Offer or, if the Offer has been extended in accordance with this Agreement, at the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”).
(e) Purchaser may, without the consent of the Company, if on or prior to any then scheduled Expiration Date any of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to of the Offer as soon as it is permitted to do so under applicable law and shall pay are not satisfied or waived, extend the Offer for such Shares promptly thereafter.
period as the Purchaser determines, provided that such extension shall be in increments of not more than ten (b10) The Offer shall initially be Business Days if all of the conditions set forth on Annex I other than the Minimum Condition have been satisfied or waived at such Expiration Date. In addition, if on or prior to any then scheduled to expire 20 business days following the commencement thereof. IfExpiration Date, at a then-scheduled expiration date, any of the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied)or, Acquisition may extend to the Offer from time to time until December 31, 2000, without extent waivable by the consent of Parent or the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer Purchaser pursuant to this Agreement, waived by Parent or the immediately preceding sentencePurchaser, at subject to Parent’s rights in Article 7, the request of Company, Acquisition Purchaser shall, and Parent shall cause Acquisition the Purchaser to, extend the expiration date Offer for successive periods of up to ten (10) Business Days each, the length of each such period to be determined by the Purchaser in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer beyond the Termination Date; provided, further, that the Purchaser shall not be required to extend the Offer after the Company delivers, or is required to deliver, to Parent a notice with respect to an Acquisition Proposal that has been received by the Company, its Subsidiaries, or any Company Representative, in one or more periods of not more than ten business days each (but in no event later than December 31accordance with Section 5.4, 2000), if except to the extent that prior to the then scheduled Expiration Date (i) any of the conditions set forth in Annex I shall not have Acquisition Proposal giving rise to such notice has been satisfied withdrawn or waived at the scheduled or extended expiration date of Company Board has rejected the OfferAcquisition Proposal giving rise to such notice, (ii) such condition is reasonably capable of being satisfiedthe Company Board has reconfirmed the Company Board Recommendation, and (iii) Company is in material compliance with all the withdrawal or rejection of its covenants in this Agreement, subject to such Acquisition Proposal and the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent reconfirmation of the Company Board Recommendation shall have been publicly announced by the Company. In addition, (i) the Purchaser shall extend the Offer then scheduled Expiration Date for any period or periods required by any rule applicable Law or regulation applicable rules, regulations, interpretations or positions of the Securities and Exchange Commission (the "“SEC"”) applicable or its staff or the New York Stock Exchange (“NYSE”).
(f) If necessary to obtain sufficient Shares to reach the Short Form Threshold (without regard to Shares issuable upon the exercise of the Top-Up Option or Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), the Purchaser may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the Offer terms and (ii) if more than 80% but less than 90% conditions of this Agreement and the outstanding Offer, the Purchaser shall, and Parent shall cause the Purchaser to, immediately accept for payment, and pay for, all Shares shall have been that are validly tendered pursuant to the Offer as during such “subsequent offering period”. The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) terms of this sentenceSection 1.1(f).
(cg) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall, and Parent shall cause the Purchaser to, promptly (and in any event within twenty four (24) hours of such termination) terminate the Offer and shall not acquire the Shares pursuant thereto. If the Offer is terminated by the Purchaser, or this Agreement is terminated prior to the acquisition of Shares in the Offer, the Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof.
(h) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits: the Offer to Purchase, a form of letter of transmittal, the notice of guaranteed delivery, a form of summary advertisement and other ancillary Offer documents and instruments required by the Exchange Act pursuant to which the Offer shall be made (collectively, together with any amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the “Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisementDocuments”). Parent and Acquisition the Purchaser agree that they shall to cause the Schedule TOOffer Documents to be disseminated to holders of Shares, as and to the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with extent required by the Exchange Act Act. Parent and the rules and regulations thereunder and other Applicable Laws. Each of ParentPurchaser, Acquisition on the one hand, and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it such party for use in the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and Acquisition further the Purchaser agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide in writing the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
Appears in 2 contracts
Sources: Merger Agreement (Advanced Medical Optics Inc), Merger Agreement (Abbott Laboratories)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer terminated pursuant to any of the conditions set forth in Annex I heretoArticle V, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition Offeror shall (and Parent shall cause Acquisition to) use its reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) the Offer as promptly as practicable (but in any event no later than the first Business Day after the date of the Shareholders Meeting (which, if the Shareholders Meeting occurs on July 30, 2015 (China time), an offer shall be July 31, 2015 (New York City time)) after the "Offer") for all date of the outstanding shares of common stock, par value $.01 per share, of the Company Shareholder Meeting.
(individually a "Share" and collectively, the "Shares"b) at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition Offeror to accept for payment and to pay for any Company Common Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to (i) the satisfaction, or waiver by Offeror in accordance with the terms hereof, of the condition that such tendered Company Common Shares represent at least two-thirds 20% of the issued and outstanding Company Common Shares on a fully- diluted basisand the other conditions and requirements that are set forth in Exhibit A, together as such conditions may be modified in accordance with this Agreement (the “Offer Conditions”). Subject to the prior satisfaction, or waiver by Offeror in accordance with the terms hereof, of the Offer Conditions as of the Expiration Time, Offeror shall consummate the Offer in accordance with its terms and accept for payment and pay for all Company Common Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested validly tendered and unvested Company Stock Options that vest prior not validly withdrawn pursuant to the Effective Time, but excluding any Shares held by Offer as promptly as practicable after the Expiration Time subject to the Offer Cap and Section 1.02(f). The Offer Price payable in respect of each Company or any of its subsidiaries) be Common Share validly tendered (and not validly withdrawn pursuant to the "Minimum Condition")Offer shall be paid to the sellers in cash, without interest, on the terms and (ii) subject to the other conditions set forth in Annex I heretothis Agreement as soon as practicable after the Expiration Time (as the same may be extended or required to be extended).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions. Acquisition Offeror expressly reserves the right (in its sole discretion) to waive, in whole or in part, any Offer Condition or to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved in writing by the Company, Offeror shall not (i) reduce the Minimum Condition may be amended Offer Price or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the OfferOffer (other than by adding consideration), imposes conditions (ii) change or modify the Offer Cap, (iii) add to the Offer in addition to those Conditions, (iv) waive, modify or change the Offer Conditions set forth in Annex Iparagraphs (a), extends or (e) of Exhibit A, (v) waive, modify or change any other Offer Condition in any manner adverse to any shareholders of the Company, (vi) except as otherwise provided in this Section 1.02, extend or otherwise change the expiration date of the Offer beyond or (vii) otherwise amend, modify or supplement any of the initial expiration other terms of the Offer in any manner adverse to the shareholders of the Company.
(d) Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”), except as provided may otherwise be required by applicable Law, or, in the event the Initial Expiration Time has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (b)the Initial Expiration Time, below) or makes any other change such later date and time to which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter“Expiration Time”).
(be) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions Notwithstanding anything in this Agreement to the Offer have not contrary, unless this Agreement has been satisfied (other than conditions which are not capable of being satisfied)terminated in accordance with its terms, Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent Offeror shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or waived; (ii) extend the Offer, at the request of the Company, in accordance with Section 4.02(b)(i)(z); and (iii) extend the Offer for any the minimum period required by applicable Law, any rule interpretation or regulation position of the Securities and Exchange Commission (the "“SEC"”) or the China Securities Regulation Commission (the “CSRC”), the staff of the SEC or the CSRC, or the New York Stock Exchange (“NYSE”) or the SZSE applicable to the Offer; provided, however, that in no event (A) shall Offeror be required to extend the Offer and beyond 45 calendar days from the date of its commencement (iithe “Outside Date”) if more than 80% but less than 90% or (B) shall this Section 1.02(e) be construed or deemed to impair, limit or otherwise restrict in any manner the right of the outstanding parties to terminate this Agreement pursuant to Article V.
(f) On the terms and subject to the satisfaction or waiver in accordance with the terms hereof by Offeror of the Offer Conditions as of the Expiration Time, Offeror shall accept and pay the Offer Price pursuant to Section 1.02(b) for all Company Common Shares shall have been validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.02); provided that, notwithstanding anything herein to the contrary, subject to the satisfaction, or waiver in accordance with the terms hereof, by Offeror of the scheduled or extended expiration dateOffer Conditions as of the Expiration Time, extend in the event that Company Common Shares representing more than the Offer Cap are validly tendered in the Offer and not validly withdrawn, Offeror shall purchase from each tendering shareholder such tendering shareholder’s pro rata portion of the total number of Company Common Shares validly tendered, such that 20% of the issued and outstanding Company Common Shares as of immediately prior to the Expiration Time is acquired pursuant to the Offer. Acceptance for an aggregate period payment of not more than five business days beyond Company Common Shares pursuant to and subject to the latest expiration Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date that would otherwise be permitted under clause (i) on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” At the Offer Closing each of this sentencethe Offeror and the Company shall deliver to the other party a duly executed counterpart to the A&R Shareholders’ Agreement.
(cg) In no event shall the Offeror terminate the Offer except as expressly permitted by this Agreement. If the Offer is terminated or withdrawn by Offeror in accordance with this Agreement, or this Agreement is terminated pursuant to Article V, prior to the acceptance for payment of the Company Common Shares tendered in the Offer, Offeror shall promptly return (and in any event within three (3) Business Days), and shall cause any depository acting on behalf of Offeror to promptly return, all tendered Company Common Shares to the registered holders thereof.
(h) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition Offeror shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "“Schedule TO") with respect to the Offer”). The Schedule TO shall contain include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto (which together constitute thereto, the "“Offer Documents") ”). The Company shall promptly furnish to comply Offeror in writing all material respects information concerning the Company and its Subsidiaries that may be required by applicable Laws or reasonably requested by Offeror for inclusion in the Offer Documents. Offeror shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the shareholders of the Company, in each case as and to the extent required by the Exchange Act Act. Offeror, on the one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to respect or as otherwise required by applicable Law. Offeror shall take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Offeror shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between it and its Representatives, on the one hand, and the SEC, on the other hand, relating to the Offer Documents. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Offeror shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment on the such Offer Documents prior or response, and Offeror shall give reasonable and good faith consideration to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing any such comments (it being understood that the Company and its counsel with shall provide any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsthereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Investment and Tender Offer Agreement (Global Aviation Leasing Co., Ltd.), Investment and Tender Offer Agreement (Avolon Holdings LTD)
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred that would result in a failure to below been commenced, would give rise to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex I hereto, Merger Subsidiary shall, as promptly as reasonably practicable after the date hereof, but in no event later than the first Business Day (as defined in Rule 14b-1(c)(6) of the Securities and Exchange Act of 1934, as amended (the "Exchange Act")), following the execution of this Agreement, issue a public announcement of the execution of this Agreement and as promptly as practicable, but in any event within five Business Days following the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for to purchase all of the outstanding shares of common stock, par value $.01 per shareshare together with attached rights to purchase shares (the "Shares"), of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.0012.50 per Share, net to the seller in cash cash. Such Offer shall remain open for a period not to exceed 30 Business Days (the "Offer PricePeriod")) subject to extension as provided below. The obligation of Acquisition to accept for payment and to pay for any Shares tendered Offer shall be subject only to (i) the condition that at least two-thirds there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares on a fully- diluted basiswhich, together with the Shares then owned by Parent and/or Acquisitionand Merger Subsidiary, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered represents at least a majority (the "Minimum Condition")) of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) (other than options to be canceled pursuant to Section 2.5 hereof, and Shares to be issued pursuant to the Stock Option Agreement defined herein) and the issuance of all Shares that the Company is obligated to issue (iisuch total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") and to the other conditions set forth in Annex I hereto. Acquisition Parent and Merger Subsidiary expressly reserves reserve the right to increase waive the conditions to the Offer Price or and to make any other changes change in the terms and or conditions of the Offer; provided, provided however, that (i) that, without the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) Company, no change may be made that which (i) except as provided in the next sentence, extends the Offer; (ii) changes the form of consideration to be paidpaid for the Shares, (iii) decreases the price per Share or the number of Shares sought in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex I, extends (v) changes or waives the expiration date of the Offer beyond the initial expiration date of the Offer Minimum Condition, or (except as provided in (b), belowvi) or makes any other change to any condition to the Offer set forth in Annex I which is materially adverse to the holders of the Shares. Subject to satisfaction of Notwithstanding the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000foregoing, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, Merger Subsidiary may (i) extend the Offer for Period until all of the conditions to the Merger Subsidiary's obligation to purchase Shares shall be satisfied or waived, including, without limitation, any period required (A) by any rule rule, regulation, interpretation, or regulation position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; or (B) pursuant to the HSR Act, defined below, shall have terminated, or (C) to obtain necessary approval of each state insurance regulatory agency required for consummation of the Offer, (ii) extend the Offer Period for a period of not more than 10 Business Days beyond the expiration thereof, as such may be extended pursuant to subparagraph (i) hereof, (iii) extend the Offer Period for an additional period of not more than 10 Business Days beyond that permitted by subparagraphs (i) and (ii) hereof if more than 80% but on the date of such extension, less than ninety percent (90% %) of the outstanding Fully Diluted Shares shall have been validly tendered and not properly withdrawn pursuant to the Offer as of the scheduled or extended expiration dateOffer, and (iv) extend the Offer for an aggregate any reason for a period of not more than five business days Business Days beyond the latest expiration date Expiration Date that would be otherwise be permitted under clause clauses (i), (ii), or (iii) of this sentence.
(c) As soon as practicable on . Subject to the date terms of the Offer is commenced, Parent and Acquisition shall file with this Agreement and the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase satisfaction (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and waiver to the extent that such information permitted by this Agreement) of the conditions of the Offer, Merger Subsidiary shall have become false or misleading in any material respect, accept for payment all Shares validly tendered and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.not
Appears in 2 contracts
Sources: Merger Agreement (Centris Group Inc), Merger Agreement (HCC Insurance Holdings Inc/De/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with its terms and none of the conditions set forth in Annex I heretoANNEX A hereto shall have occurred or be continuing, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition Merger Sub to) , and Merger Sub shall, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer () the "Offer") for all of Offer as promptly as reasonably practicable after the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")date hereof. The obligation of Acquisition Merger Sub to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, and without giving effect to the exercise of the option pursuant to the Stock Option Agreement, shall constitute a majority of the then outstanding Shares on a fully- fully diluted basisbasis (including, together with the Shares then owned by Parent and/or Acquisitionwithout limitation, (including for purposes of such calculation all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of all any outstanding Options or Warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer but excluding any such holders of Options or Warrants who have agreed in writing to accept the cash payments described in Section 2.7 hereof upon termination of their Options or Warrants as described in Section 2.7 hereof) shall have been validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Time, but excluding any Shares held by expiration of the Company or any of its subsidiaries) be validly tendered Offer (the "Minimum Condition"), ) and (ii) there shall not have occurred or be continuing any of the other conditions set forth in Annex I ANNEX A hereto. Acquisition Parent expressly reserves the right to waive any such condition, to increase the Offer Price or Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition no change may be amended or waived only with made by Parent without the prior written consent of the Company and which (iiA) no change may be made that decreases the Per Share Amount or changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, (B) waives the Minimum Condition, (C) reduces the maximum number of Shares to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date ANNEX A hereto or (E) amends any term of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is manner materially adverse to the holders of the Shares. Subject to satisfaction Shares or the likelihood of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent consummation of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business daysMerger. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Merger Sub may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be twenty (20) Business Days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Merger Sub's obligation to accept for payment Shares shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (SEC, or the "SEC") staff thereof, applicable to the Offer and Offer, or (iiiii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days ten (10) Business Days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions (including the Minimum Condition) to Merger Sub's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer totals less than ninety percent (90%) of the issued and outstanding Shares on a fully diluted basis. Following expiration of the Offer, the Purchaser may, in its sole discretion, provide a subsequent offering period (a "Subsequent Offering Period") in accordance with Rule 14d-11 under the Exchange Act. The Per Share Amount shall, subject to any applicable withholding of Taxes, be $1.00 net to the sellers of the Shares in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not withdrawn as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares for the sole purpose of complying in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment equal to the Per Share Amount in cash is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of such amount to a Person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Merger Sub that such Taxes either have been paid or are not applicable. If this Agreement is terminated by Parent or by the Company, Parent shall cause Merger Sub to, and Merger Sub shall, terminate promptly the Offer.
(cb) As soon promptly as reasonably practicable on the date of commencement of the Offer is commencedOffer, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or shall incorporate by reference an offer to purchase (the "Offer to Purchase (or portions thereofPurchase") and forms of the related letter of transmittal and any related summary advertisement. Parent and Acquisition agree that they shall cause advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments or supplements thereto (which together constitute thereto, being referred to herein collectively as the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws). Each of Parent, Acquisition Merger Sub and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition Merger Sub further agree to take all steps necessary to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof such documents being filed with the SECSEC or disseminated to holders of Shares. Parent and Acquisition agree to Merger Sub shall provide in writing the Company and its counsel with copies of any comments Parent, Acquisition Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the formulation of the response of Parent or Merger Sub to such comments.
(c) Subject to applicable law and the rules and regulations of The Nasdaq Stock Market, Inc. and/or the OTC Bulletin Board, in the event that, following a Subsequent Offering Period, if any, the Purchaser has acquired less than ninety percent (90%) of the Shares, but not less than seventy-five percent (75%) of the Shares, the parties have entered into a Stock Option Agreement (the "Stock Option Agreement"), pursuant to which the Company has granted to the Purchaser an option to purchase that number of Shares equal to the number of Shares that, when added to the number of Shares owned by the Purchaser and its affiliates immediately following expiration of the Subsequent Offering Period, shall constitute ninety percent (90%) of the Shares then outstanding on a fully diluted basis.
(d) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to accept for payment, and to pay for, any and all Shares that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (E-Medsoft Com), Agreement and Plan of Merger and Reorganization (E-Medsoft Com)
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred thatbeen terminated in accordance with Article VII, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any and (ii) all of the conditions set forth in paragraphs (c)(i) through (c)(vi) of Annex I heretoshall then be satisfied (in the case of (x) paragraphs (c)(ii) through (c)(v), giving effect only to representations and warranties made as of dates prior to such time and (y) paragraph (c)(vi), giving effect only to agreements and covenants that the Company is required to comply with or to perform prior to such time) or waived by Parent or Merger Sub, as promptly as reasonably practicable (and in any event within ten Business Days) after the public announcement of the terms date of this Agreement, but in no event later than one week after the date hereof, Acquisition Merger Sub shall (and Parent shall cause Acquisition Merger Sub to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended, and the rules and regulations promulgated thereunder (the "“Exchange Act")”), an offer the Offer to purchase all the outstanding Shares at the Offer Price.
(b) Subject to the "Offer") for all satisfaction of the outstanding shares of common stockMinimum Condition and the satisfaction, par value $.01 per shareor waiver by Merger Sub, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I heretoI, Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable, but in any event no later than three Business Days, after the Expiration Date. Acquisition The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. Merger Sub expressly reserves 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 expressly provided in this Agreement or as previously approved by the Company in writing, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) decrease the Minimum Condition may be amended or waived only with the prior written consent of the Company and Offer Price, (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend, modify or waive the Minimum Condition, (v) add any additional conditions to the Offer in addition to those set forth on Annex I or amend any of the conditions and requirements to the Offer set forth in Annex II in a manner adverse to the holders of Shares, extends (vi) extend the expiration date Expiration Date in a manner other than in accordance with this Agreement or (vii) otherwise amend, modify or supplement any of the terms of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is a manner adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(bd) The Unless extended in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at midnight (New York City time) on the date that is 20 business days Business Days following the commencement thereofof the Offer (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended in accordance with the terms of this Agreement, the “Expiration Date”). IfIf on any then scheduled Expiration Date, at a then-scheduled expiration date, all of the conditions to the Offer have not been satisfied (including the Minimum Condition and the other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I I) have not been satisfied, or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfiedbe required to, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, shall not without the consent of Company’s prior written consent, extend the CompanyOffer beyond August 20, 2015 (i) the “Outside Date”). In addition, Merger Sub shall extend the Offer for any period or periods required by any rule applicable Law or regulation applicable rules, regulations, interpretations or positions of the U.S. Securities and Exchange Commission (the "“SEC"”) applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceits staff.
(ce) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VII. If this Agreement is terminated pursuant to Article VII, Merger Sub shall (and Parent shall cause Merger Sub to) promptly, irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly (and in any event within two Business Days) return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(f) As soon as practicable on the date of the Offer is commencedcommencement of the Offer, Parent and Acquisition Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits theretoexhibits, the "“Schedule TO") with respect to the Offer”). The Schedule TO shall contain include, as an exhibit or incorporate by reference exhibits, the Offer to Purchase (or portions thereof) and forms Purchase, a form of the related letter of transmittal and a form of summary advertisementadvertisement (collectively, together with any amendments and supplements, the “Offer Documents”). Parent and Acquisition Merger Sub agree that they shall to cause the Schedule TOOffer Documents to be disseminated to holders of Shares, as and to the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with extent required by the Exchange Act Act. Parent and Merger Sub, on the one hand, and the rules and regulations thereunder and Company, on the other Applicable Laws. Each of Parenthand, Acquisition and the Company agrees agree to promptly to correct any information provided by it for use in the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and Acquisition further Merger Sub agree to take all steps necessary to promptly cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof before they are filed with the SEC. , and Parent and Acquisition agree Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested by the Company and its counsel. In addition, Parent and Merger Sub shall provide in writing the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Acquisition Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested by the Company and its counsel. The date and time at which Merger Sub accepts for payment Shares tendered and not properly withdrawn pursuant to the Offer is referred to in this Agreement as the “Acceptance Time.”
(g) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article VIII hereof and none of the conditions events set forth in Annex I heretohereto (the "Tender Offer Conditions") shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the fifth business day from the date hereofof this Agreement, Acquisition shall (the Purchaser shall, and Parent shall cause Acquisition Purchaser to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")), ) an offer (the "Offer") for to purchase all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Shares at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably file all necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance documents with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") in connection with the Offer (the "Offer Documents"). The obligation of the Purchaser to accept for payment or pay for any Shares tendered pursuant thereto will be subject only to the satisfaction of the conditions set forth in Annex I hereto.
(b) Without the prior written consent of the Company, Purchaser shall not (i) impose conditions to the Offer in addition to the Tender Offer Conditions, (ii) modify or amend the Tender Offer Conditions or any other term of the Offer in a manner adverse to the holders of Common Shares, (iii) reduce the number of Shares subject to the Offer, (iv) reduce the Offer Price, (v) except as provided in the following sentence, extend the Offer, if all of the Tender Offer Conditions are satisfied or waived, or (vi) change the form of consideration payable in the Offer. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, extend the Offer at any time, and from time to time, (i) if at the then scheduled expiration date of the Offer any of the conditions to Purchaser's obligation to accept for payment and pay for all Shares shall not have been satisfied or waived; (ii) for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer and Offer; or (iiiii) if more than 80% all Tender Offer Conditions are satisfied or waived but the number of Common Shares tendered is at least equal to 70%, but less than 90% %, of the then outstanding Shares shall have been validly tendered pursuant to the Offer as number of the scheduled or extended expiration dateCommon Shares, extend the Offer for an aggregate period of not more than five 10 business days (for all such extensions) beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence. So long as this Agreement is in effect, the Offer has been commenced and the Tender Offer Conditions have not been satisfied or waived, Purchaser shall, and Parent shall cause Purchaser to, cause the Offer not to expire, subject however to Purchaser's and Parent's rights of termination under this Agreement.
(c) As soon as practicable on the date Parent and Purchaser represent that the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to Documents will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Acquisition Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Western Atlas Inc), Merger Agreement (3-D Geophysical Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred thator be existing, had no later than two (2) business days after the public announcement of the terms of this Agreement, the Purchaser shall commence the Offer, in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer referred Price net to below been commencedthe seller thereof in cash, would give rise provided, however, that the Purchaser shall use its best efforts to a right to terminate commence the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly soon as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week two business days after such public announcement. The Offer shall expire and terminate on the date hereof, Acquisition shall twentieth (and Parent shall cause Acquisition to20th) commence (within business day from the meaning commencement of Rule 14d-2 under the Securities Exchange Act of 1934 Offer (the "Exchange ActExpiration Date")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition Purchaser shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant Expiration Date up to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten (10) additional business days each (but in no event later than December 31, 2000), if (i) order to satisfy any of the conditions set forth in Annex I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been satisfied or waived at the scheduled or extended expiration date terminated in accordance with its terms and none of the Offerevents set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than (ii2) such condition is reasonably capable two business days after the public announcement of being satisfied, and (iii) Company is in material compliance with all the terms of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of Purchaser shall file with the Securities and Exchange Commission (the "SEC") applicable the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer, which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and (ii) if more subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than 80% but less than 90% two business days after such public announcement. The obligation of the outstanding Purchaser to accept for payment or pay for any Common Shares shall have been validly tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in Annex I hereto. Without the prior written consent of the Company, the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the Minimum Condition (as defined in Annex I), impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Common Shares; provided that the Purchaser expressly reserves the right to waive any condition to the Offer (other than the Minimum Condition) without the consent of the Company. Subject to the terms of the Offer and this Agreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Purchaser will accept for payment and pay for all Common Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser shall make reasonable provision for the payment of Offer proceeds to be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the Company's outstanding Common Shares. Subject to Section 8.01, if any of the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by the Purchaser as of the Expiration Date (or any subsequently scheduled or extended expiration date), Purchaser will extend the Offer from time to time, in each case, for an aggregate the shortest time period that it reasonably believes is necessary for the consummation of not more than five business days beyond the latest expiration date that would otherwise Offer. Each of the parties hereto shall use its reasonable best efforts to cause all conditions precedent set forth in Annex I to be permitted under clause (i) fulfilled and avoid the occurrence of this sentenceany event or to cure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
(cb) As soon as practicable on the date the The Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to Documents will comply in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules and regulations thereunder and other Applicable Lawsdate first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Acquisition Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Aei Resources Inc), Merger Agreement (Zeigler Coal Holding Co)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Article IX hereof and none of the conditions events set forth in Annex I heretoclause (iii) of the Tender Offer Conditions shall have occurred, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, (but in no event later than one week March 26, 2008) after the date hereofof this Agreement, Acquisition shall (and Parent shall cause Acquisition to) Purchaser to commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934 (the "Exchange Act")), ) an offer (the "Offer") for to purchase all of the outstanding shares of common stockSeller Common Stock at the Offer Price, par value $.01 per shareand shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Company (individually a "Share" Tender Offer Conditions, Purchaser shall, and collectivelyParent shall cause Purchaser to, promptly after the "Shares") at a price for each Share expiration of $16.00the Offer, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for (after giving effect to any Shares required withholding Tax), all shares of Seller Common Stock validly tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior pursuant to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered Offer and not withdrawn (the "Minimum Condition"time and date of acceptance for payment, the “Acceptance Date”), and .
(iib) the other conditions set forth in Annex I hereto. Acquisition expressly Purchaser reserves the right to increase the waive, in whole or in part, any Tender Offer Price Condition or to make any other changes in modify the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with without the prior written consent of Seller, Purchaser shall not decrease the Company and (ii) no Offer Price or change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes waive or amend the Minimum Condition (as defined in Annex I hereto), decrease the number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer in addition to those set forth in Annex I, extends the expiration date or amend any other term of the Offer beyond in any manner adverse to the initial expiration Seller Stockholders. The Offer shall remain open until 12:00 midnight, Boston, Massachusetts time, on the date that is twenty (20) Business Days after the commencement (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) of the Offer (except as provided in (bthe “Expiration Date”), belowunless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the succeeding sentence or as may be required by applicable Laws or interpretations of the Securities and Exchange Commission (“SEC”) or makes its staff, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that Purchaser may provide a subsequent offering period (and one or more extensions thereof) after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act. If at any other change which is adverse to the holders Expiration Date, any of the Shares. Subject Tender Offer Conditions is not satisfied or waived by Purchaser, Purchaser may extend the Offer from time to satisfaction time; provided, however, that if all of the conditions contained in Annex ITender Offer Conditions other than the Minimum Condition are satisfied or waived as of the scheduled expiration of the initial twenty (20) Business Day offering period, Acquisition then Purchaser shall accept extend such Expiration Date on one or more occasions for payment all Shares validly tendered pursuant a total of an additional thirty (30) calendar days; provided further that on any scheduled Expiration Date of the Offer, (i) if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to the Offer as soon as it is permitted to do so under applicable law and or the Merger shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not expired or been satisfied (other than conditions which are not capable of being satisfied)terminated, Acquisition may Purchaser shall extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of or termination under the Offer in one HSR Act or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied other material applicable foreign statutes or waived at the scheduled regulations; or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% any of the outstanding Shares Tender Offer Conditions set forth in paragraph (a) of clause (iii) of Annex I hereto shall have been occurred and be continuing, Purchaser shall extend the Offer from time to time until the earlier of (A) five (5) Business Days after the time such condition or conditions shall no longer exist or (B) such time at which any of the matters described in such paragraph (a) of clause (iii) of Annex I hereto shall have become final and non-appealable. Nothing contained in this paragraph shall affect any termination rights of the parties in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, Purchaser will accept for payment and pay for all shares of Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly after such Expiration Date of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceOffer.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (BladeLogic, Inc.), Merger Agreement (BMC Software Inc)
The Offer. (a) Provided that nothing shall have occurred thatThe parties hereto agree to cause RDO Tender to commence, had the Offer referred and RDO Tender agrees to below been commencedcommence, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), on or about April 28, 2003, an offer (the "Offer") to purchase for cash all of the issued and outstanding Class A Shares of RDOE (other than those shares of common stockheld by RDO Tender, par value $.01 per shareRDO Holdings and the RDO Holdings Stockholders), of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.006.01 per share, net to the seller in cash (the "Offer Price")cash, less any required withholding of taxes and without payment of interest. The obligation of Acquisition RDO Tender to accept for payment and to pay for any Class A Shares tendered shall in the Offer will be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basisconditioned upon, together with the Shares then owned by Parent and/or Acquisitionamong other things, (including for purposes of such calculation all Shares issuable upon exercise of all vested there having been validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond (as such date may be extended pursuant to the initial expiration date terms of the Offer) at least that number of Class A Shares (1) that would, when aggregated with the Class A Shares owned directly or indirectly by RDO Holdings, represent at least 90% of all Class A Shares then outstanding (the "90% Condition") and (2) that represent at least a majority of the total number of Class A Shares outstanding on the date shares are accepted for payment that are not owned by RDO Tender, RDO Holdings and their affiliates and the executive officers of RDOE (the "Majority of the Minority Condition"). The Offer (except will also be subject to certain other conditions as provided described in (b), below) or makes any the Offer to Purchase. Although the 90% Condition and the other change which is adverse conditions to the holders Offer may be waived by RDO Holdings and RDO Tender, the Majority of the SharesMinority Condition may not. Subject to satisfaction of the conditions contained set forth in Annex Ithe Offer to Purchase, Acquisition shall RDO Holdings and the RDO Holdings Stockholders will cause RDO Tender to accept for payment and pay for all Class A Shares validly tendered pursuant to in the Offer as soon as it RDO Tender is legally permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. Iflaw, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend upon the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any extension thereof. Notwithstanding any of the conditions set forth foregoing, ▇▇. ▇▇▇▇▇▇ may decide in Annex I shall not have been satisfied or waived his sole discretion at any time prior to the scheduled or extended expiration date of the Offer and for any reason whether to cause RDO Tender to abandon the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject . Any decision whether to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any or effect a subsequent offering period required will be made solely by any rule or regulation ▇▇. ▇▇▇▇▇▇, as President of the Securities RDO Holdings and Exchange Commission (the "SEC") applicable RDO Tender. Any decision whether a condition to the Offer has been satisfied will be made solely by ▇▇. ▇▇▇▇▇▇, as President of RDO Holdings and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentenceRDO Tender.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Agreement to Facilitate (Rdo Equipment Co), Agreement to Facilitate (Rdo Equipment Co)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.1 and none of the conditions events set forth in paragraph (2)(iii) of Annex I heretoshall exist or have occurred and be continuing, as promptly as reasonably practicable (and in any event within 10 Business Days) after the public announcement of the terms date of this Agreement, but in no event later than one week after the date hereof, Acquisition Purchaser shall (and Parent shall cause Acquisition Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act Act) the Offer to purchase for cash any and all outstanding Shares at the Offer Price.
(b) Subject to the terms and conditions of 1934 this Agreement and the Offer, promptly after the latest of (i) the earliest date as of which Purchaser is permitted under applicable Law to accept for payment Shares validly tendered and not withdrawn pursuant to the Offer, (ii) the earliest date as of which each of the conditions and requirements set forth in Annex I (the "Exchange Act"))“Offer Conditions”) has been satisfied, an offer or waived by Parent or Purchaser, and (iii) the "Offer"Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and pay for all of the outstanding shares of common stock, par value $.01 per share, of the Company Shares (individually a "Share" without interest) validly tendered and collectively, the "Shares") at a price for each Share of $16.00, net not withdrawn pursuant to the seller in cash (Offer that Purchaser becomes obligated to purchase pursuant to the "Offer Price")Offer. The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares (without interest) tendered and not withdrawn pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds satisfaction, or waiver by Parent or Purchaser, of each of the Shares on a fully- diluted basis, together with the Shares then owned Offer Conditions.
(c) The Offer shall be made by Parent and/or Acquisition, (including for purposes means of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior an offer to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered purchase (the "“Offer to Purchase”) that contains, among other things, the terms set forth in this Agreement, the Minimum Condition"), Condition and (ii) the other conditions and requirements set forth in Annex I heretoto this Agreement. Acquisition Parent and Purchaser expressly reserves reserve the right to (i) increase the Offer Price or to and (ii) waive any Offer Conditions and make any other changes in to the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with unless otherwise provided by this Agreement, without the prior written consent of the Company and Company, neither Parent nor Purchaser shall (iiA) no decrease the Offer Price, (B) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.,
Appears in 2 contracts
Sources: Merger Agreement (GCP Sunshine Acquisition, Inc. A Delaware Corp), Agreement and Plan of Merger (American Land Lease Inc)
The Offer. (a) 2.1. The Offer. ---------
2.1.1. Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 10.1, and (ii) none of the events set ------------ forth in Annex A hereto shall have occurred thator be existing, had upon the Offer referred terms and ------- subject to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I herein and as soon as practicable following the execution and delivery hereof by the parties hereto, as promptly as reasonably practicable after the public announcement Company shall commence a cash tender offer to acquire all of the terms of this Agreementissued and outstanding Shares, but including the associated preferred share purchase rights, for $17.00 per Share (as defined in no event later than one week after the date hereofrecitals hereto, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition Company shall not be ----- required to accept for payment and to pay for any Shares tendered shall be subject only pursuant to the Offer, in accordance with the terms hereof and the terms of the Offer, unless (i) the condition that at least twoseventy-thirds five percent (75%) of the outstanding Shares (on a fully- fully diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested ) after giving effect to Section 2.4 shall have been validly tendered and unvested Company Stock Options that vest ----------- not withdrawn prior to the Effective Time, but excluding any Shares held by expiration of the Company or any of its subsidiaries) be validly tendered Offer (the "Minimum Condition"), ----------------- and (ii) the other conditions set forth in Annex I heretoA hereto shall have been ------- satisfied. Acquisition expressly reserves The Per Share Amount payable by the right Company in respect of each Share tendered pursuant to increase the Offer Price or shall, subject to make any other changes applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer; providedOffer (including, howeverwithout limitation, that (i) the Minimum Condition may be amended or waived only with Condition), as promptly as practicable following the prior written consent expiration of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions the Company shall deliver, or cause to be delivered, the Per Share Amount to each Person who has validly tendered (and not withdrawn) Shares pursuant to the Offer Offer, in addition to those exchange for each Share so tendered and not withdrawn.
2.1.2. Provided that this Agreement shall not have been terminated in accordance with Article X hereof and all of the conditions set forth in Annex I--------- ----- A shall not have been satisfied, extends the Company shall, at the direction of TNF, - extend the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December a date not later than July 31, 2000, without 1999.
2.1.3. Upon the consent of the Company, for such amount of time as is reasonably necessary terms and subject to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at herein, concurrently with the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) the Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a an Issuer Tender Offer Statement on Schedule TO 13E-4 (together with all amendments and supplements thereto, the "Schedule 13E-4") with respect to -------------- the Offer, and including the Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and TNF shall file with the SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with all exhibits amendments and supplements thereto, the "Schedule TO13E-3") with respect to the Offer, the Stock -------------- Purchase, the Asset Dropdown, the Merger and the other transactions contemplated hereby (collectively, the "Transactions"). The Schedule TO 13E-4 and the Schedule ------------ 13E-3 shall contain as an exhibit contain, or shall incorporate by reference reference, an offer to purchase (the "Offer to Purchase (or portions thereofPurchase") and forms of the related letter of transmittal transmittal, any ----------------- related summary advertisement and summary advertisement. Parent and Acquisition agree that they shall cause any other documents related to the Offer (the Schedule TO13E-4, the Schedule 13E-3, the Offer to Purchase and such other documents, together with all supplements and amendments or supplements thereto (which together constitute thereto, being referred to herein collectively as the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws). Each of Parent, Acquisition and the Company agrees and TNF --------------- shall correct promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information which shall have become false or misleading in any material respectmisleading, and Parent each of the Company and Acquisition further agree to TNF shall take all steps actions necessary to cause the Schedule TO 13E-4 and the Schedule 13E-3, as so corrected corrected, to be filed with the SEC and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.
Appears in 2 contracts
Sources: Transaction Agreement (Green Equity Investors Iii Lp), Transaction Agreement (North Face Inc)
The Offer. (ai) Provided that nothing this Merger Agreement shall not have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any terminated in accordance with Section 8.01 and none of the conditions events set forth in Annex I heretoA hereto shall have occurred or be existing, as promptly soon as reasonably practicable after (but in no event later than five business days from the public announcement of the terms of this Merger Agreement, but in no event later than one week ) the Offerors shall commence the Offer. The initial expiration date of the Offer shall be the twentieth business day from and after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 Offer is commenced (the "Exchange ActInitial Expiration Date")), an offer .
(the "Offer"ii) for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price"). The obligation of Acquisition the Offerors to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the following conditions: (iA) that there be validly tendered and not withdrawn prior to the condition expiration of the Offer that number of Shares which, when taken together with all Shares owned by the Offerors, represents at least two-thirds ninety percent of the then outstanding Shares on a fully- fully-diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered basis (the "Minimum Condition"), and (iiB) the other conditions set forth in Annex I hereto. Acquisition A hereto (collectively, the "Additional Offer Conditions," and together with the Minimum Condition, the "Offer Conditions"), any of which Additional Offer Conditions may be waived by the Offerors in their sole discretion.
(iii) The Offerors expressly reserves reserve the right to increase the Offer Price amend or make changes to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with that, without the prior written consent of the Company (expressed in a resolution adopted by both the Special Committee and the Board), the Offerors shall not (iiv) no decrease the Offer Price or change may be made that changes the form of consideration to be paidpaid in the Offer, decreases (w) waive or modify the price per Share or Minimum Condition, (x) decrease the number of Shares sought in the Offer, imposes (y) impose any additional conditions to the Offer from the Offer Conditions, or (z) otherwise amend the Offer in addition a manner that would adversely affect the holders of Shares. The Company agrees that no Shares owned by the Company for its account will be tendered pursuant to those set forth the Offer. Notwithstanding anything in Annex Ithis Merger Agreement to the contrary, extends without the consent of the Company, the Offerors shall have the right to extend the Offer beyond the Initial Expiration Date in the following events: (1) from time to time if, at the Initial Expiration Date (or extended expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (bOffer, if applicable), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied or waived; (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i2) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable Law (as hereinafter defined); or (3) pursuant to an amendment to the Offer providing for a "subsequent offering period" to the extent permitted under, and (ii) in compliance with, Rule 14d-11 under the Exchange; provided, that notwithstanding anything to the contrary, if more than 80% but less than 90% any of the outstanding conditions to the Offer are not satisfied or, if applicable, waived on any scheduled expiration date of the Offer, the Offerors shall be required to extend the Offer for a period of 10 business days and, if at the end of such 10 business day period all of the conditions to the Offer are still not satisfied or, if applicable, waived, an additional period of 10 business days; provided further, that, without the consent of the Company (expressed in a resolution adopted by both the Special Committee and the Board), the Offerors shall not extend the Offer beyond the date that is 50 business days from the date on which the Offer was commenced.
(iv) Following the satisfaction or waiver of the Offer Conditions, Purchaser shall accept for payment, in accordance with the terms of the Offer, all Shares shall have been validly tendered pursuant to the Offer and not withdrawn as soon as it is permitted to do so pursuant to applicable Law. On or prior to the dates that Purchaser (or, in the case of the scheduled or extended expiration dateMerger, extend the Surviving Corporation) becomes obligated to accept for payment and pay for Shares pursuant to the Offer and Merger, Mr. Sosnoff shall provide, or ▇▇▇▇▇ ▇▇ ▇▇ provided, to Purchaser (or, in the case of the Merger, the Surviving Corporation) the funds necessary to pay for an aggregate period all Shares that Purchaser (or, in the case of not more than five business days beyond the latest expiration date that would otherwise Merger, the Surviving Corporation) becomes so obligated to accept for payment and pay for pursuant to the Offer and Merger, as the case may be. The Offer Price shall, subject to any required withholding of Taxes (as defined below), be permitted under clause (i) net to the stockholder in cash without interest and less any required withholding taxes, upon the terms and subject to the conditions of this sentencethe Offer.
(cb) As soon as practicable on the date the Offer is commenced, Parent and Acquisition The Offerors shall file with the SEC on the date that the Offer is commenced a Tender Offer Statement on Schedule TO (together with all any supplements or amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect which will contain, among other things, the offer to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms purchase, form of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOadvertisement (together with any supplements or amendments thereto, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") ), and a Rule 13e-3 Transaction Statement on Schedule 13E-3 with respect to the Offer which shall be filed as a part of the Schedule TO (the "Offeror Schedule 13E-3"). The Offer Documents and Offeror Schedule 13E-3 shall comply in all material respects with the Exchange Act and provisions of applicable federal securities laws and, on the rules and regulations thereunder and other Applicable Laws. Each date filed with the SEC and, if applicable, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of Parenta material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, Acquisition and in light of the Company agrees promptly circumstances under which they were made, not misleading, except that no representation is made by the Offerors with respect to correct any information provided supplied by it the Special Committee in writing for use inclusion in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition Documents. The Offerors further agree to take all steps necessary to cause the Offer Documents and Offeror Schedule TO as so corrected 13E-3 to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company Offerors agree promptly to correct any information provided by them or it for use in the Offer Documents or Offeror Schedule 13E-3 if and to the extent that it shall have become false and misleading in any material respect and the Offerors further agree to take all steps necessary to cause the Offer Documents or Offeror Schedule 13E-3 as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Special Committee and its counsel shall be given reasonable the opportunity to review the Schedule TO and comment on the Offer Documents prior to the filing thereof Offeror Schedule 13E-3 before it is filed with the SEC. Parent and Acquisition In addition, the Offerors agree to provide in writing the Company Special Committee and its counsel with any comments Parent, Acquisition or other communications that they or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offeror Schedule 13E-3 promptly after the receipt of such comments or other communications.
(c) The Offerors agree to provide the Special Committee and its counsel with any comments or other communications that either of them or its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly or Offeror Schedule 13E-3 after the receipt of such commentscomments or other communications.
Appears in 2 contracts
Sources: Merger Agreement (Atalanta Acquisition Co), Merger Agreement (Steinberg Craig B)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article VIII, (ii) nothing shall have occurred that, had the Offer referred to below been commenced, that would give rise to a right to terminate the Offer pursuant to render any of the conditions set forth in the first paragraph of Annex I heretoA incapable of being satisfied and (iii) none of the events set forth in the second paragraph of Annex A hereto shall have occurred and be continuing, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, (but in no event later than one week seven (7) business days after the date hereofof this Agreement) Purchaser shall, Acquisition shall (and Parent shall cause Acquisition Purchaser to) , commence (within the meaning of Rule 14d-2 the applicable rules and regulations of the Securities and Exchange 2 Commission (the "SEC") promulgated under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), ) an offer to purchase for cash (the "Offer") for any and all of the issued and outstanding shares of common stock, par value $.01 per share, of the Company Common Stock (individually a "Share" and collectively, the "Shares") (including the related Rights (as defined in Section 4.02 of this Agreement)) at a price for each Share of $16.0035.00 per Share, net to the seller in cash. For purposes of this Agreement, the term "Transaction Consideration" shall mean $35.00 per Share in cash (or any higher price as shall be paid in respect of the "Offer Price")Shares in the Offer. The obligation obligations of Acquisition Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price A hereto (any or to make any other changes in the terms and conditions all of the Offer; providedwhich may, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions subject to the Offer in addition provisions hereof, be waived by Parent or Purchaser, subject to those set forth in Annex I, extends the expiration date of the Offer beyond the applicable law). The initial expiration date of the Offer (except as provided in (b), belowthe "Expiration Date") or makes any other change which is adverse to shall be the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 20th business days day following the commencement thereofof the Offer (determined using Rules 14d-1 and 14d-2 under the Exchange Act), but in no event shall be later than October 6, 2000. IfWithout the prior written consent of the Company, at a then-scheduled expiration datePurchaser shall not (i) decrease the Transaction Consideration, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) change the form of consideration payable in the Offer (although Purchaser shall, in its sole discretion, have the right to increase the amount of the Transaction Consideration), (iv) add to the conditions to the Offer have not been satisfied set forth in Annex A, (v) waive the Minimum Condition (as defined in Annex A) or (vi) make any other than change in the terms or conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods which is adverse to any holder of not more than ten business days each (but in no event later than December 31Shares, 2000), if (i) it being agreed that neither a waiver by Purchaser of any of the conditions set forth in Annex I shall not have been satisfied A (other than the Minimum Condition) in whole or waived in part at any time and from time to time in its discretion, nor the scheduled or extended expiration date extension of the OfferExpiration Date as permitted below, (ii) such condition is reasonably capable shall be deemed to be adverse to any holder of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Shares. Purchaser may, without the consent of the Company, (i) extend the Offer Expiration Date (which extended date shall thereupon be the Expiration Date for purposes of this Agreement):(i) in increments of not more than ten (10) business days each, if at the scheduled Expiration Date any of the conditions to Purchaser's obligation to purchase Shares are not satisfied, until such time as such conditions are satisfied or waived and (ii) for any period required by any rule rule, regulation, interpretation or regulation position of the Securities and Exchange Commission (SEC or the "SEC") staff thereof applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO In addition, Purchaser shall contain as an exhibit or incorporate by reference have the Offer to Purchase (or portions thereof) and forms right, without the consent of the related letter Company, to make available a subsequent offering period (within the meaning of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with Rule 14d-11 under the Exchange Act and Act). Without limiting the rules and regulations thereunder and other Applicable Laws. Each right of ParentPurchaser to extend the Offer, Acquisition and provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if the Company agrees promptly conditions set forth in Annex A are not satisfied or, to correct any information provided the extent permitted hereby, waived by it for use in Purchaser as of the Offer Documents if and Expiration Date, then, except to the extent that such information conditions are incapable of being satisfied, at the request of the Company, Purchaser will extend the Expiration Date from time to time until the earlier of the date that such conditions are satisfied or waived or the date that is thirty (30) days (or if the condition set forth in clause (ii) in the first paragraph of Annex A has not been satisfied, 60 days) from the date of the initial Expiration Date(such date the "Mandatory Extension Date," and, if such date is later than the then-scheduled Expiration Date, the Mandatory Extension Date shall have become false thereupon be the Expiration Date for purposes of this Agreement); provided, however, that Purchaser shall not be required to so extend the Expiration Date if the failure to meet any of the conditions set forth in Annex A was caused by or misleading resulted from the failure of the Company to perform in any material respectrespect any covenant or agreement of the Company contained herein, and Parent and Acquisition further agree to take all steps necessary to cause or the Schedule TO as so corrected to be filed with material breach by the SEC and the other Offer Documents as so corrected to be disseminated to holders Company of Sharesany representation or warranty contained herein. Purchaser shall, in each case as and subject to the extent required by terms and conditions of the Offer, accept for payment Shares tendered as soon as it is legally permitted to do so under applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentslaw.
Appears in 2 contracts
Sources: Merger Agreement (Bayer Corp), Merger Agreement (Bayer Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events set forth in ANNEX A hereto shall have occurred thator be existing (unless such event shall have been waived by Acquiror Sub), had Acquiror shall cause Acquiror Sub to commence, and Acquiror Sub shall commence, the Offer referred to below been commenced, would give rise to a right to terminate at the Offer pursuant to any of the conditions set forth in Annex I hereto, Per Share Amount as promptly prompt as reasonably practicable after the public announcement of the terms of this Agreementdate hereof, but in no event later than one week fifteen (15) days after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within . The initial expiration date for the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 Offer (the "Exchange Act")), an offer (the "OfferINITIAL OFFER EXPIRATION DATE") for all shall be no longer than twenty (20) business days following the commencement of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") at a price for each Share of $16.00, net to the seller in cash (the "Offer Price")Offer. The obligation of Acquisition Acquiror Sub to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition (the "MINIMUM CONDITION") that at least twothe number of Shares that, when combined with the Shares, if any, already owned by Acquiror and its direct and indirect subsidiaries, constitute fifty-thirds one percent (51%) of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested "Voting Shares" shall have been validly tendered and unvested Company Stock Options that vest not withdrawn prior to the Effective Time, but excluding any Shares held by expiration of the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), Offer and (ii) the satisfaction or waiver of the other conditions set forth in Annex I heretoANNEX A hereto and to the terms and conditions of this Agreement. Acquisition "VOTING SHARES" means the then outstanding Shares, together with all of the then issued and outstanding shares of Class A Preferred Stock, par value $.01 per share (the "Class A Preferred Stock") and all of the Shares issuable under Options (as defined in Section 2.07) that are or may become exercisable between the Tender Offer Acceptance Date (as defined below) and the Effective Time (as defined in Section 2.02) or under any other option, warrant, convertible security or right or other commitment or arrangement in effect on the Tender Offer Acceptance Date. Acquiror Sub expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the Offer Price or price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (iinotwithstanding Section 8.03) no change may be made that changes the form of consideration to be paid, which (A) decreases the price per Share or the number of Shares sought payable in the Offer, (B) reduces the maximum number of Shares to be purchased in the Offer, (C) imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the OfferANNEX A hereto, (iiD) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to amends or changes the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments.terms
Appears in 2 contracts
Sources: Merger Agreement (Exigent International Inc), Merger Agreement (Harris Corp /De/)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 9.01 below and none of the events set forth in clauses (a) through (i) of Annex A hereto shall have occurred thatand be continuing to exist, had Purchaser shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreementdate hereof, but in no event later than one week 10 business days after the date hereof, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), an offer (the "Offer") for all initial public announcement of the outstanding shares execution and delivery of common stock, par value $.01 per share, this Agreement. The initial expiration date of the Company (individually a "Share" and collectively, Offer shall be 20 business days after the "Shares") at a price for each Share commencement of $16.00, net to the seller in cash (the "Offer Price")Offer. The obligation of Acquisition Purchaser to accept for payment and to pay for any Shares tendered pursuant to the Offer shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), ) that at least the number of Shares that shall constitute fifty and six-tenths percent (ii50.6%) of the then outstanding Shares on a Fully Diluted Basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer and also shall be subject to the satisfaction of each of the other conditions set forth in Annex I A hereto. Acquisition Purchaser expressly reserves the right to waive any such condition other than the Minimum Condition, to increase the Offer Price or cash price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) without the Minimum Condition may be amended or waived only with the Company's prior written consent of the Company and (ii) consent, no change may be made that changes the form of consideration to be paid, which decreases the cash price per Share payable in the Offer or which reduces the maximum number of Shares sought to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) A hereto or makes any other change which is adverse to otherwise adversely affects the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition Purchaser may, without the consent of the Company, (i) extend the Offer from time to time for the shortest time periods which the Purchaser reasonably believes are necessary until the consummation of the Offer, (ii) extend the Offer for any period required by any rule rule, regulation or regulation interpretation of the Securities and Exchange Commission (the "SEC") ), or the staff thereof, applicable to the Offer and Offer, or (iiiii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence.
(c) As soon , if, as practicable of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the Offer equals 80% or more, but less than 90%, of outstanding Shares on a Fully Diluted Basis. In addition, if, on the then applicable expiration date of the Offer, the sole condition(s) remaining unsatisfied are (i) the failure of the waiting period under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (the "HSR Act") or under any applicable material non-United States statutes or regulations, (ii) the process pursuant to the Exon-Flor▇▇ ▇▇▇vision (as hereinafter defined) has not been completed, and/or (iii) any waiting period applicable to the consummation of the Offer is commencedunder the Arms Regulations shall not have expired or been terminated then, Parent Purchaser shall extend the Offer from time to time until 11 7 the earlier to occur of (i) January 31, 2001 and Acquisition shall file with (ii) the SEC a Tender Offer Statement on Schedule TO fifth business day after the latest to occur of (together with all amendments and supplements theretoA) the expiration or termination of the applicable waiting period under the HSR Act or any applicable material non-United States statutes or regulations, (B) the satisfaction of any requirements under the Exon-Flor▇▇ ▇▇▇vision, as applicable, and including (C) the expiration or termination of the waiting period under the Arms Regulations. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Purchaser shall pay for all exhibits thereto, Shares validly tendered and not withdrawn promptly following the "Schedule TO") with respect acceptance of Shares for payment pursuant to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference Notwithstanding the Offer to Purchase (or portions thereof) immediately preceding sentence and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TO, the Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and subject to the extent that such information shall have become false or misleading in any material respect, and Parent and Acquisition further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with applicable rules of the SEC and the other Offer Documents terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as so corrected amended (the "Exchange Act"). If the payment equal to the Per Share Amount in cash (the "Merger Consideration") is to be disseminated made to holders a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of Sharesthe Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in each case as proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent and Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Acquisition satisfaction of Purchaser that such taxes either have been paid or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such commentsare not applicable.
Appears in 2 contracts
Sources: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article 8, and that no event shall have occurred and be continuing that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I heretoA, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof5:30 p.m. Eastern Daylight Savings time on July 28, Acquisition shall (and 2009, Parent shall cause Acquisition to) Merger Sub to commence, and Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "“Exchange Act"”)), an offer (the "Offer") . In the Offer, each Share accepted by Merger Sub in accordance with the terms of the Offer shall be exchanged for the right to receive from Merger Sub the Offer Price. Parent shall cause Merger Sub to accept for payment, and Merger Sub shall accept for payment, all Shares which have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable following the Expiration Date. Notwithstanding the above, the obligation of Merger Sub to accept for payment, and pay for all Shares tendered pursuant to the Offer shall be subject (x) to the condition that the number of Shares validly tendered and not withdrawn shall be at least the outstanding shares minimum number of common stockShares required to approve this Agreement, par value $.01 per share, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA (individually a "Share" the “Minimum Condition”), and collectively, the "Shares"(y) at a price for each Share of $16.00, net to the seller other conditions set forth in cash Annex A. The conditions to the Offer set forth in Annex A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the "Agreement) giving rise to such condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to the following sentence. Merger Sub expressly reserves the right to increase the amount of consideration payable in the Offer Price"). The obligation of Acquisition to accept for payment and to pay for waive any Shares tendered shall be subject only to condition of the Offer, except the Minimum Condition; provided that, Merger Sub, at its sole option, may waive such Minimum Condition (i) if the condition that number of Shares validly tendered and not withdrawn shall be at least two-thirds equal to the difference between (x) the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA, less (y) the number of Shares on a fully- diluted basis, together subject to Support Agreements or (ii) with the prior written consent of the Company. The failure of Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Without the prior written consent of the Company, Merger Sub shall not decrease the amount of consideration payable in the Offer or change the form of consideration payable in the Offer, decrease the number of Shares then owned by Parent and/or Acquisitionsought to be purchased in the Offer, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior impose additional conditions to the Effective Time, but excluding any Offer or reduce the time period during which the Offer shall remain open. The Company agrees that no Shares held by the Company or any of its subsidiaries) Subsidiaries will be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following On the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, Parent and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, Merger Sub shall (i) extend the Offer for any period required by any rule file or regulation of the Securities and Exchange Commission (the "SEC") applicable cause to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file filed with the SEC a combined Schedule 13E-3 and Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference the and related Offer to Purchase (or portions thereof) and forms Purchase, form of the related letter of transmittal and summary advertisementadvertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and including any supplements or amendments thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable Law. The Company shall promptly furnish to Parent and Acquisition agree Merger Sub in writing all information concerning the Company that they shall cause the Schedule TO, may be required by applicable securities Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. The Company hereby consents to Purchase and all amendments or supplements thereto (which together constitute the "inclusion in the Offer Documents") to comply in Documents of all material respects disclosure relating to (i) the company financial advisor ▇▇▇▇▇ & Company LLC (including the amount of fees and other consideration that ▇▇▇▇▇ & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, and the conditions therefor), (ii) the financial advisor ▇▇▇▇▇▇▇ & Company (including the amount of fees and other consideration that ▇▇▇▇▇▇▇ & Company shall receive in connection with the Exchange Act opinion referred to in Section 4.20), (iii) the opinions of each of ▇▇▇▇▇ & Company LLC and ▇▇▇▇▇▇▇ & Company referred to in Section 4.20 and (iv) the rules information that formed the basis for rendering each of such opinions, subject to the approval of the form of such disclosure by ▇▇▇▇▇ & Company LLC and regulations thereunder and other Applicable Laws▇▇▇▇▇▇▇ & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of Parent, Acquisition Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and respect or as otherwise required by applicable Law. Parent and Acquisition further agree to take all steps necessary Merger Sub shall use their reasonable best efforts to cause the Schedule TO as so corrected corrected, to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, as soon as reasonably practicable and as and to the extent required by applicable federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents prior to the filing thereof each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Acquisition agree to Merger Sub shall provide in writing the Company and its counsel with (i) any written comments or other communications, and shall inform them of any oral comments or other communications, that Parent, Acquisition Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given).
(c) Subject to the terms and conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the twentieth Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the date the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an “Expiration Date”); provided, however, that Merger Sub shall: (i) from time to time extend the Offer for one or more periods of up to 20 Business Days each, the length of each such commentsperiod to be determined by Merger Sub in its sole discretion, if at the scheduled Expiration Date any of the conditions of the Offer, including the Minimum Condition and the conditions and requirements set forth in Annex A, shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement, and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Merger Sub may, from time to time, extend the Offer for a period of no more than 20 days in the aggregate, if at the scheduled Expiration Date less than 80% of the number of Shares then outstanding less the number of shares held by persons subject to Support Agreements (the “Support Agreement Shares”) have been validly tendered and not withdrawn. Notwithstanding the above, in no event shall Merger Sub be required to, or shall Parent be required to cause Merger Sub to, extend the Offer beyond the Outside Date (as hereinafter defined). In no event shall Merger Sub extend the Offer beyond the Outside Date without the consent of the Company. Parent and Merger Sub shall comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the foregoing, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer promptly following the acceptance of such Shares for payment pursuant to the terms and subject to the conditions of the Offer and this Agreement. This paragraph shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent or Merger Sub to terminate this Agreement pursuant to Article VIII.
Appears in 2 contracts
Sources: Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred thatbeen terminated in accordance with Article V, had the Offer referred to below been commencedPurchaser shall, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I hereto, as promptly as reasonably practicable after the public announcement of the terms of this Agreement, but in no event later than one week after the date hereof, Acquisition shall (and Parent shall cause Acquisition Purchaser to) , commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934 1934, as amended (together with its rules and regulations, the "“Exchange Act"”)), an offer the Offer, as promptly as reasonably practicable (and, so long as the Company is in compliance with its obligations to provide information contained in the second sentence of Section 1.1(d), within ten (10) Business Days) after the date of this Agreement; provided, however, if the Company is not ready to file the Schedule 14D-9 on the same date as the commencement of the Offer, then such deadline shall automatically be extended until such date as the Company is ready to file the Schedule 14D-9. Purchaser shall give the Company three (3) Business Days notice of the expected commencement date.
(b) The obligation of Purchaser to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject to (i) there being validly tendered in the Offer, and not validly withdrawn prior to any then-scheduled Expiration Time, that number of Shares which represents at least forty percent (40%) of the total number of Shares authorized and issued on the date hereof (the "Offer"“Minimum Condition”); and (ii) for all of the outstanding shares of common stocksatisfaction, par value $.01 per shareor waiver by Parent or Purchaser, in their sole discretion, of the Company conditions or requirements set forth in Annex A attached hereto (individually a "Share" and collectivelytogether with the Minimum Condition, the "Shares") at a price for “Offer Conditions”), other than the Minimum Condition. The Offer Price payable in respect of each Share of $16.00, validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller in cash (cash, without interest, on the "Offer Price"). The obligation of Acquisition to accept for payment terms and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions. Parent and Purchaser expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition or to increase the Offer Price; provided, however, that, unless otherwise provided by this Agreement, without the prior written consent of the Company, Purchaser shall not
(i) decrease the Offer Price or change the form of consideration payable in the Offer, (ii) decrease the number of Shares subject to the Offer, (iii) add to the conditions set forth on Annex I hereto. Acquisition A, (iv) amend or modify any Offer Condition in a manner that is adverse to the Company Shareholders, (v) waive or amend the Minimum Condition, (vi) except as otherwise provided in this Section 1.1, extend or otherwise change the expiration date of the Offer or (vii) otherwise amend, modify or supplement the terms of the Offer in a manner that is adverse to the Company Shareholders; provided that, notwithstanding the foregoing, Purchaser expressly reserves the right (exercisable in its sole discretion) to increase the Offer Price or to make waive any other changes in the terms and conditions of the Offer; provided, however, that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, imposes conditions to the Offer in addition to those set forth in Annex I, extends the expiration date of the Offer beyond Conditions, other than the initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterMinimum Condition.
(bd) The Offer Purchaser shall initially be scheduled to expire 20 business days following file with the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the U.S. Securities and Exchange Commission (the "“SEC"”) applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments amendments, supplements and supplements thereto, and including all exhibits thereto, the "“Schedule TO"”) with respect to on the Offer. The date that the Offer is commenced, which Schedule TO shall contain include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase Purchase, form of transmittal letter and form of notice of guaranteed delivery (such Schedule TO, including all such exhibits, together with any supplements or amendments or supplements thereto (which together constitute thereto, the "“Offer Documents"”) and, subject to comply the Company’s compliance with Section 1.2(b), cause the Offer Documents to be disseminated to the Company Shareholders in accordance with the applicable requirements of the Exchange Act. The Company shall promptly furnish to Parent and Purchaser all material respects with information concerning the Company that is required by the Exchange Act and the rules and regulations thereunder and other Applicable Laws. Each of Parent, Acquisition and the Company agrees promptly to correct any information provided by it for use be set forth in the Offer Documents if and or that is otherwise reasonably requested by Parent or Purchaser for inclusion in the Offer Documents or in connection with the obligations relating to the extent that such information shall have become false or misleading Offer Documents contained in any material respect, and this Section 1.1(d). Parent and Acquisition further agree to Purchaser shall take all steps necessary to cause the Schedule TO as so corrected Offer Documents to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company Shareholders, in each case as and to the extent required by applicable federal securities lawsLaw. The Parent and Purchaser, on the one hand, agree to amend the Offer Documents and the Company, on the other hand, agrees to promptly correct any information provided by it for use in the Offer Documents, if and to the extent such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents, as so amended (if applicable), to be filed with the SEC and disseminated to the Company Shareholders, in each case as and to the extent required by applicable Law. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the Company Shareholders, the Company and its counsel shall be given a reasonable opportunity to review and comment on the such Offer Documents prior Documents, and Parent and Purchaser shall give reasonable consideration to the filing thereof with the SECany such comments. Parent and Acquisition agree Purchaser shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide in writing the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand, and shall give the Company and its counsel with a reasonable opportunity to participate in the response of Parent and Purchaser to those comments and to provide comments on any response, and Parent and Purchaser shall give reasonable consideration to any such comments. Prior to responding to any comments Parent, Acquisition or their counsel may receive from of the SEC or its staff with respect to the Offer Documents promptly after receipt of Documents, Parent and Purchaser shall provide the Company and its counsel a reasonable opportunity to review and comment on such response, and Parent and Purchaser shall give reasonable consideration to any such comments.
(e) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, on the date that is twenty (20) Business Days (as defined in Rule 14d-1 under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”). Notwithstanding anything in this Agreement to the contrary, but subject to the parties’ respective rights to terminate this Agreement under Article V, if applicable, (i) Purchaser may, in its sole discretion, without the consent of the Company, extend the Offer on one or more occasions if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, as permitted by this Agreement, waived, until such time as such condition or conditions are satisfied or so waived, (ii) Purchaser shall extend the Offer for any period required by applicable Law, any interpretation or position of the SEC, the staff thereof or NASDAQ applicable to the Offer, (iii) in the event that any of the Offer Conditions (other than the Minimum Condition) shall have not been satisfied or, as permitted by this Agreement, waived as of any then-scheduled Expiration Time, then Purchaser, at the request of the Company, shall extend the Offer for a period reasonably requested by the Company and (iv) in the event that the Minimum Condition shall not have been satisfied as of the then-scheduled Expiration Time and all of the other conditions to the Offer set forth in Annex A shall have been satisfied as of such Expiration Time, then, at the request of the Company, Parent shall cause Purchaser to extend the Offer for one extension period of up to twenty (20) Business Days, the length of such period to be determined by the Company in its sole discretion; provided, however, that in no event shall Purchaser be required or permitted to extend the Offer beyond December 31, 2011 (the “Outside Date”).
(f) Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, consummate the Offer and accept for payment and pay for (subject to any withholding of Taxes pursuant to Section 1.1(h)) all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.1). Acceptance for payment of Shares pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Unless this Agreement and the Offer are terminated in accordance with Article V prior to the Offer Closing, Parent shall cause Purchaser to extend the Offer for a “subsequent offering period” of not less than twenty (20) Business Days, and Purchaser may, at its sole discretion, extend the Offer for additional “subsequent offering periods” (and one or more extensions thereof), all in accordance with Rule 14d-11 under the Exchange Act. The Offer Documents shall disclose the initial “subsequent offering period” and may, in Purchaser’s sole discretion, provide for such a reservation of right with respect to any additional “subsequent offering periods.” Notwithstanding the foregoing and subject to applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Law. Any such delay in payment shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. Nothing contained in this Section 1.1 shall affect any termination rights in Article V, as to the Agreement, or in Annex A, as to the Offer.
(g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article V. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated pursuant to Article V, prior to the acceptance for payment of the Shares tendered in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. This Agreement may not be terminated by Parent or Purchaser for any reason following acceptance for payment of the Shares tendered in the Offer but prior to payment for such Shares.
(h) Parent, Purchaser and any depository acting on behalf of Parent or Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts otherwise payable to any Person pursuant to this Agreement as may be required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), and applicable Treasury Regulations issued pursuant thereto, or under any provision of any state, local or foreign Tax Law, including applicable Spanish Tax Law. To the extent amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Any amounts so withheld shall be paid over promptly to the appropriate taxing authority and Purchaser shall provide prompt written notice to the Persons from whom such amounts are withheld, specifying the amounts so withheld and the taxing authorities to which the withheld amounts have been paid.
Appears in 2 contracts
Sources: Transaction Agreement (Schneider Electric Sa), Transaction Agreement (Telvent Git S A)
The Offer. (a) Provided In accordance with the provisions of this Agreement and provided that nothing shall have occurred that, had the Offer referred to below been commenced, which would give rise to result in a right to terminate the Offer pursuant to failure of any of the conditions set forth in Annex I heretoA, attached hereto and made a part hereof, as promptly as reasonably practicable after the public announcement of the terms of this Agreementpracticable, but and in no event later than one week after the fifth (5th) business day following the date hereof, Acquisition shall (and the Parent shall cause Acquisition the Purchaser to) , and the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an a tender offer (as it may be amended from time to time as permitted hereunder, the "Offer") for all of the issued and outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") of the Common Stock (defined hereafter) at a price for each Share of Twenty Three Dollars and Forty Cents ($16.00, 23.40) per share net to the seller in cash cash, without interest thereon (such price or such higher price per share as may be paid in the Offer, being referred to herein as the "Share Price"), which Offer, and the obligation of the Purchaser to accept payment and pay for Shares tendered pursuant to the Offer, shall be in accordance with the terms of this Agreement, subject to the conditions set forth in Annex A hereto. The Purchaser shall, subject only to the satisfaction or waiver of the conditions set forth on Annex A hereto, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. The Offer shall be made by means of an offer to purchase (the "Offer Priceto Purchase"). The obligation of Acquisition to accept for payment ) containing the terms set forth in this Agreement, the Minimum Condition (as defined in Annex A hereto) and to pay for any Shares tendered shall be subject only to (i) the condition that at least two-thirds of the Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I A hereto. Acquisition Notwithstanding the foregoing, the Purchaser expressly reserves the right to increase the price per Share payable in the Offer Price or to and make any other changes in to the terms and or conditions of the Offer; Offer (or waive in whole or in part, at the sole discretion of the Purchaser any of such conditions), provided, however, that (i) the Minimum Condition may be amended or waived only with Purchaser will not, without the prior written consent of the Company and (such consent to be authorized by the Board of Directors of the Company), (i) waive the Minimum Condition, (ii) no subject to clause (z) of the proviso in the immediately following sentence, extend the Offer if all of the Offer conditions are satisfied or waived, (iii) decrease the Share Price, change may be made that changes the form of consideration to be paid, decreases payable in the price per Share Offer or decrease the number of Shares sought in sought, (iv) impose additional conditions to the Offer, imposes (v) waive the condition described in clause (x) of Annex A hereto or (vi) amend the conditions to of the Offer or any other term of the Offer in addition any manner adverse to those set forth in Annex I, extends the expiration date holders of the Offer beyond the Shares (other than insignificant changes or amendments or other than to waive any condition). The initial expiration date of the Offer (except as provided in (b), below) or makes any other change which is adverse to the holders of the Shares. Subject to satisfaction of the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafter.
(b) The Offer shall initially be scheduled to expire 20 business days following commencement of the commencement thereof. IfOffer (such date and time, at a then-scheduled expiration dateas may be extended in accordance with the terms hereof, is referred to as the "Expiration Date"); provided, however, and notwithstanding anything in the foregoing to the contrary, it is understood and agreed that the Purchaser may, from time to time, in its sole discretion extend the Expiration Date, but not beyond September 24, 1997, without the consent of the Company (x) if any of the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount the minimum period of time as is reasonably necessary to cause satisfy such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each condition; (but in no event later than December 31, 2000), if (iy) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule order, decree or regulation of the Securities and Exchange Commission ruling of, or any rule, regulation, interpretation or position of, any Governmental Entity (the "SEC"as hereafter defined) applicable to the Offer and Offer; or (iiz) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate a period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (ix) or (y) of this sentencesentence solely for the purpose of obtaining valid tenders (which are not withdrawn) of 90% of the Shares. A record holder who validly tenders, and does not withdraw, pursuant to the Offer at least 500,000 shares of Common Stock which such holder beneficially owns, may receive, upon acceptance of such shares by the Purchaser pursuant to the Offer, payment therefor by wire transfer of immediately available funds to an account in the United States designated in writing by such holder at the time such shares are tendered pursuant to the Offer.
(cb) As soon as practicable on the date the Offer is commenced, the Parent and Acquisition the Purchaser shall file with the SEC United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments and supplements thereto, thereto and including all the exhibits thereto, the "Schedule TO14D-1") with respect to the Offer). The Schedule TO shall contain 14D-1 will include, as an exhibit or incorporate by reference the Offer to Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement. Parent and Acquisition agree that they shall cause the Schedule TOexhibits, the Offer to Purchase and all a form of letter of transmittal and summary advertisement (collectively, together with any amendments or and supplements thereto (which together constitute thereto, the "Offer Documents") ). The Offer Documents will comply as to comply form in all material respects with the Exchange Act provisions of applicable federal securities laws and, on the date filed with the SEC and on the rules date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Parent or the Purchaser with respect to information furnished by the Company for inclusion or incorporation by reference in the Offer Documents. The information supplied in writing by the Company for inclusion or incorporation by reference in the Offer Documents and regulations thereunder and other Applicable Lawsby the Parent or the Purchaser for inclusion or incorporation by reference in the Schedule 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Acquisition the Parent and the Company agrees Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. Each of the Parent and the Purchaser, on the one hand, and the Company, on the other hand, will promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or and misleading in any material respect, respect and Parent and Acquisition further agree to the Purchaser will take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given reasonable the opportunity to review and comment on the Offer Documents prior to the filing thereof Schedule 14D-1 before it is filed with the SEC. In addition, the Parent and Acquisition agree to the Purchaser will provide in writing the Company and its counsel in writing with any comments comments, whether written or oral, the Parent, Acquisition the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Ibp Inc), Merger Agreement (Foodbrands America Inc)
The Offer. (a) Provided Subject to the provisions of this Agreement and provided that nothing shall have occurred that, had the Offer referred that would result in a failure to below been commenced, would give rise to a right to terminate the Offer pursuant to satisfy any of the conditions set forth in Annex ANNEX I hereto, Parent shall cause the Purchaser to, as promptly as reasonably practicable after the public announcement of the terms of this Agreementdate hereof, but in no event later than one week after five (5) business days following the date hereofinitial public announcement of the Purchaser's intention to commence the Offer, Acquisition shall (and Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934 1934, as amended (the "Exchange Act")), an offer (the "Offer") Offer for all of the outstanding shares of common stock, par value $.01 per share, of the Company (individually a "Share" and collectively, the "Shares") Shares at a price for each Share of $16.0018.00 per Share, net to the seller in cash (the "Offer Price"). The obligation of Acquisition to accept for payment and to pay for any Shares tendered shall be cash, subject only to (i) to a minimum of 2,649,538 Shares (or such other number of Shares, when added to the condition that at least two-thirds number of Shares already owned by Parent, the Purchaser or any direct or indirect wholly owned Subsidiary (as defined in Section 1.3(a)) of Parent, as shall constitute a majority of the Company's Fully Diluted Shares on a fully- diluted basis, together with the Shares then owned by Parent and/or Acquisition, (including for purposes of such calculation all Shares issuable upon exercise of all vested and unvested Company Stock Options that vest prior to the Effective Time, but excluding any Shares held by the Company or any of its subsidiariesas defined in Section 4.2) be validly tendered (the "Minimum Shares") being validly tendered prior to the expiration or termination of the Offer and not withdrawn (the "Minimum Share Condition"), ) and (ii) to the other conditions to the Offer set forth in Annex I heretoANNEX I. The Purchaser may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer (the "Tendered Shares"), but no such assignment shall relieve the Purchaser of its obligations hereunder. Acquisition The Purchaser expressly reserves the right to increase waive any of the conditions to the Offer Price or set forth in ANNEX I and to make any other changes in modify the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that that, without the prior written approval of the Company, the Purchaser shall not amend or modify the terms of the Offer to (i) reduce the Minimum Condition may cash price to be amended or waived only with paid pursuant to the prior written consent of the Company and Offer, (ii) no reduce the number of Shares as to which the Offer is made, (iii) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, imposes (iv) modify or waive the Minimum Share Condition, or (v) impose conditions to its obligation to accept for payment or pay for the Offer in addition to Tendered Shares other than those set forth in Annex IANNEX I. The Offer may not be extended without the Company's prior written consent; PROVIDED, extends HOWEVER, that the expiration date of Purchaser may extend (and re-extend) the Offer beyond for up to a total of 20 business days if, as of the initial expiration date date, which shall be 20 business days following commencement of the Offer (except as provided in (b)Offer, below) or makes any other change which is adverse there shall not have been validly tendered and not withdrawn that number of Shares necessary to permit the holders Merger to be effected without a meeting of the Shares. Subject to satisfaction of Company's stockholders in accordance with the conditions contained in Annex I, Acquisition shall accept for payment all Shares validly tendered pursuant to the Offer as soon as it is permitted to do so under applicable law and shall pay for such Shares promptly thereafterDGCL.
(b) The Offer shall initially be scheduled to expire 20 business days following As soon as reasonably practicable on the commencement thereof. If, at a then-scheduled expiration date, the conditions to the Offer have not been satisfied (other than conditions which are not capable of being satisfied), Acquisition may extend the Offer from time to time until December 31, 2000, without the consent of the Company, for such amount of time as is reasonably necessary to cause such Offer Conditions to be satisfied, no such extension to exceed ten business days. Without limiting the right of Acquisition to extend the Offer pursuant to the immediately preceding sentence, at the request of Company, Acquisition shall, and Parent shall cause Acquisition to, extend the expiration date of the Offer in one or more periods of not more than ten business days each (but in no event later than December 31, 2000), if (i) any of the conditions set forth in Annex I shall not have been satisfied or waived at the scheduled or extended expiration date commencement of the Offer, (ii) such condition is reasonably capable of being satisfied, and (iii) Company is in material compliance the Purchaser shall file with all of its covenants in this Agreement, subject to the cure provisions of paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, Acquisition may, without the consent of the Company, (i) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC") applicable to the Offer and (ii) if more than 80% but less than 90% of the outstanding Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence.
(c) As soon as practicable on the date the Offer is commenced, Parent and Acquisition shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") 14D-1 with respect to the Offer. The Schedule TO , which shall contain as an exhibit or shall incorporate by reference the Offer an offer to Purchase (or portions thereof) purchase and forms of the a related letter of transmittal and summary advertisement. Parent advertisement (such Schedule 14D-1 and Acquisition agree that they shall cause the Schedule TO, documents included therein or incorporated therein by reference pursuant to which the Offer to Purchase and all will be made, together with any supplements or amendments or supplements thereto (which together constitute thereto, the "Offer Documents") ). Parent and the Purchaser agree that the Offer Documents shall comply as to comply form in all material respects with the Exchange Act Act, and the rules and regulations thereunder promulgated thereunder, and, on the date filed with the SEC and other Applicable Lawson the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company or any of its representatives which is included in the Offer Documents. Each of Parent, Acquisition the Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectmisleading, and each of Parent and Acquisition the Purchaser further agree agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to the their filing thereof with the SECSEC or dissemination to stockholders of the Company. Parent and Acquisition the Purchaser agree to provide in writing the Company and its counsel with any comments Parent, Acquisition the Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Subject to the terms and conditions of the Offer, the Purchaser shall pay for Shares which have been validly tendered and not withdrawn pursuant to the Offer as promptly as practicable following expiration of the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Andros Inc), Merger Agreement (Andros Acquisition Inc)