The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition").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has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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. (b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events described in any of paragraphs (a) or conditions set forth in (b) of Annex A shall III hereto have occurred and be existingcontinuing (unless waived by Parent or Sub), thenSub shall, not later than the first business day after execution of this Agreement, the and 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementcause Sub to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (together with the "Company Rights Agreement"), between the Company rules and First Interstate Bank of California, as Rights Agent (collectivelyregulations promulgated thereunder, the "Shares"“Exchange Act”)) at a price of $10.50 per Share, net to the seller in cashOffer within ten (10) business days following the date hereof. The Purchaser shall obligations of Sub to accept for payment and to pay for all any Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the "Minimum Condition")conditions set forth in Annex III hereto. Solely for purposes of determining whether Subject to the Minimum Condition has been satisfied, any Shares owned prior satisfaction or waiver by Parent or Purchaser Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall be deemed to have been validly 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 Purchaser 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 price per Share payable in the Offer or Price and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat Sub shall not, unless previously approved by and Parent shall cause Sub not to, decrease the Company Offer Price or change the form of consideration in writingwhich any component of the Offer Price is payable, no change may be made which decreases decrease the price per Share payable number of Shares sought in the Offer, which changes the form of consideration to be 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 A 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 waive or change the Minimum Condition if such waiver would result (as defined 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(aAnnex III hereto), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, modify or which otherwise amends the terms of the Offer (including amend any of the conditions set forth in Annex A) III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse to the holders of 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 manner date that is materially adverse twenty-one (21) business days after commencement of 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 holders be authorized by the Company Board of SharesDirectors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the Purchaser 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 the any scheduled (or extended) expiration date of the Offer, any of the conditions to set forth in Annex III hereto (other than the Purchaser's obligation to purchase Shares Minimum Condition) shall not be satisfied until such or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time as such conditions are 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 (iiiii) extend the Offer for a any period required by any rule, regulation or interpretation of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause United States Securities and Exchange Commission (i) of this sentence if“SEC”), on or the date of such extensionstaff thereof, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant applicable to the Offer. It is agreed that In addition to the conditions set forth in Annex A are for the sole benefit of the Parent foregoing and the Purchaser and may be asserted by the Parent or the Purchaser regardless of the circumstances giving rise to excluded from any such condition (including any action or inaction by limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under 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 OfferExchange Act.
(b) As promptly as reasonably practicable following execution On the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Sub shall file with the Securities and SEC, pursuant to Regulation M-A under the Exchange Commission Act (the "SEC") “Regulation M-A”), a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments 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 shall will comply as to form in all material respects with the requirements all applicable provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), . Parent and Sub agree to take all commercially reasonable steps necessary to cause the rules and regulations promulgated thereunder and, on the date Offer Documents to be filed with the SEC and on the date first publishedand, sent or given subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by applicable Law. Parent and Sub, on the statements thereinone hand, 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, the Purchaser and the Company agrees Company, on the other hand, agree to promptly to correct any information supplied provided by it specifically for inclusion 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 each of the respect or as otherwise required by Law. Parent and the Purchaser Sub further agrees agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all amendments reasonable additions, deletions or modifications thereto suggested by the Company and supplements thereto its legal counsel. In addition, Parent and Sub agree to provide the Company with any comments, whether written or oral, that Parent, Sub or their counsel may receive from time to time prior to their filing with the expiration or termination of the Offer, from the SEC or dissemination its staff with respect to the stockholders Offer Documents, promptly 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 CompanyCompany 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 Subject to the provisions of this Agreement shall and this Agreement not have having been terminated in accordance with Article IX and none of the events or conditions set forth 10 hereof, as promptly as ---------- practicable but in Annex A shall have occurred and be existing, then, not later than the first any event within five 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 days after the date hereof, Merger Sub shall commence, within the meaning of Rule 14d-2 under the public announcement Securities Exchange Act of 1934 (the execution of this Agreement"Exchange Act") and the rules and regulations ------------ promulgated thereunder, the Purchaser shall, subject an offer to the provisions of this Agreement, commence a tender offer purchase (the "Offer") for all all, and in any event ----- not less than a majority on a fully diluted basis, of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Stock at a price of $10.50 14.75 per Shareshare of Common Stock, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn , without interest (such price or any higher price paid pursuant to the Offer, the "Offer at Consideration"). Notwithstanding the earliest time following expiration foregoing, if between ------------------- the date of this Agreement and the closing of the Offer that all conditions to the Offer set forth in Annex A hereto outstanding shares of Common Stock shall have been satisfied changed into a different number of shares or waived a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the PurchaserOffer 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 Purchaser and Merger Sub to commence the Purchaser to Offer and accept for payment, purchase and pay for Shares for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Annex Exhibit A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered hereto and not withdrawn prior to the expiration terms and conditions of this Agreement. --------- Subject to the provisions of this Agreement, the Offer shall expire 20 business days after the date of its commencement, unless this Agreement is terminated in accordance with Article 10, in which case the Offer (whether or not previously ---------- extended in accordance with the "Minimum Condition"). Solely for purposes terms hereof) shall expire on such date 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 not withdrawn pursuant to the Offer. The Purchaser termination.
(b) Merger Sub expressly reserves the right to increase modify the terms of the Offer and to waive any condition of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the Minimum Condition (as defined in Exhibit A), --------- (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per Share payable in the Offer or share of Common Stock to make any other changes in the terms and conditions of be paid pursuant to the Offer; PROVIDED, HOWEVER(iv) except as set forth below, thatextend the Offer, unless previously approved by (v) change the Company in writing, no change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form of consideration to be 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 A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a (vi) amend or modify any term or 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex on Exhibit A) in a any manner that is materially --------- adverse to the holders of SharesCommon Stock or (vii) impose additional conditions to the Offer other than such conditions required by applicable law. Notwithstanding So long as this Agreement is in effect and the foregoingconditions to the Offer have not been satisfied or waived, the Purchaser Merger Sub may, without the consent of the Company, extend (ior shall extend at the request of the Company) the Offer for an aggregate period of not more than 20 business days (for all such extensions) beyond the originally scheduled expiration date of the Offer. So long as this Agreement is in effect and the conditions to the Offer have been satisfied or waived, Merger Sub may, without the consent of the Company, extend the Offer if, at for an aggregate period of not more than 20 business days (for all such extensions) beyond the originally scheduled expiration date of the Offer, any if the number of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period shares of not more than 15 business days beyond the latest expiration date Common Stock that would otherwise be permitted under clause (i) of this sentence 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 represent less than 90% of the issued and outstanding shares of the Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, 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. It is agreed that the conditions set forth in Annex Exhibit A are for the sole --------- benefit of the Parent Merger Sub and the Purchaser and may be asserted by the Parent Merger Sub 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 timeby Merger Sub or Purchaser, in its their sole discretion. The failure by the Parent Merger Sub 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 Subject to the Parent or the Purchaser with respect to any terms and conditions of the foregoing conditions (includingOffer and this Agreement, without limitationMerger Sub shall accept for payment and pay for, in accordance with the satisfaction terms of such conditions) shall be final the Offer, all shares of Common Stock validly tendered and binding on not withdrawn pursuant to the parties. The Company agrees that no Shares held by Offer as soon as practicable after the Company will be tendered in expiration of the Offer.
(bc) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with provide or cause to be provided to Merger Sub on a timely basis the Securities funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and Exchange Commission 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), as the "SEC") a Tender Offer Statement on Schedule 14D-1 case may be, of its ----------- obligations under this Agreement with respect to the Offerpayment of the Offer Consideration, which shall contain an offer to purchase and related letter of transmittal and summary advertisement the Option Consideration (such Schedule 14D-1 as defined in Section 5.2(d)) and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"-------------- Merger Consideration (as defined in Section 5.2(b)). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 (Avery Dennison Corporation), Merger Agreement (Quad-C Inc), Merger Agreement (Stimsonite Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 9.01 and that none of the events or conditions set forth in Annex A shall have occurred and be existing, then, existing and shall 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to Parent (the conditions set forth in Annex A heretoA, including the condition that a number “Tender Offer Conditions”), Purchaser shall commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) the Offer as promptly as practicable and in any event within ten (10) business days after the date hereof. The obligation of Purchaser to accept for payment Shares representing not less than a majority of validly tendered pursuant to the Shares on a fully diluted basis shall have been validly Offer and to pay the Per Share Amount for each such tendered and not subsequently withdrawn prior Share shall be subject only to the expiration date of the Tender Offer (the "Minimum Condition")Conditions. 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share Amount payable in the Offer or Offer, and to make any other changes in to the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by that without the prior written consent of the Company (i) the Minimum Condition (as defined in writing, Annex A) may not be waived and (ii) no change may be made which decreases the price per Share payable in the Offer, which that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the Per Share Amount payable in the Offer, which (C) reduces the maximum number of Shares to be purchased in the Offer, which (D) imposes conditions to the Offer in addition to those set forth in Annex A hereto, or (E) amends the conditions set forth in Annex A hereto in any manner materially adverse to the holders of Shares.
(b) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day after the date that the Offer is commenced (the “Expiration Date”), unless Purchaser shall have extended the period of time for which broadens the scope 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: (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 clause (ii) of the second paragraph of the Tender Offer Conditions are not satisfied on or before the Expiration Date; (iii) if the condition set forth in clause (d) of Annex A is not satisfied and is the sole condition remaining unsatisfied and the Company is using its reasonable best efforts to satisfy such conditionscondition; or (iv) if any applicable Law, which increases rule, regulation, interpretation or position of the minimum Securities and Exchange Commission (the “SEC”) or the staff of the SEC (the “SEC Staff”) thereof applicable to the Offer 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 any of the Tender Offer Conditions, other than 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 which must be that have been validly tendered as a condition to the acceptance for payment and payment for shares not withdrawn in the Offer, which waives the Minimum Condition if such waiver would result in together with any Shares then owned by Parent is less than 90% of the outstanding Shares on a majority Fully Diluted Basis, Purchaser may, in its sole discretion, and subject to the first sentence of Shares being accepted subsection (c), commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three to 20 business days to 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 or paid 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, which, except 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 promptly as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after reasonably practicable on the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and forms of notice of guaranteed delivery and any related summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct promptly any information supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC 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 shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser agree 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 a reasonable opportunity to review and comment on the Offer Documents prior to such documents being filed with the SEC or disseminated to holders of Shares. Parent and Purchaser shall provide the Company and its counsel in writing with any comments the that Parent, the Purchaser or their counsel may receive from the SEC or its the SEC Staff with respect to the Offer Documents promptly after the receipt of such comments. The comments and shall provide the Company and its counsel shall be given with a reasonable opportunity to review and comment upon participate in the Offer Documents and all amendments and supplements thereto prior response of Parent or Purchaser to their filing with the SEC or dissemination to the stockholders of the Companysuch 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 this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A nothing shall have occurred and be existingthat would give rise to a right to terminate this Agreement pursuant to Article 8, then, not later than Buyer shall commence (within the first business day after execution meaning of this Agreement, Rule 14d-2 promulgated under the Parent shall issue a public announcement of ▇▇▇▇ ▇▇▇) the execution of this Agreement, and not later than the fifth business day Offer as promptly as reasonably practicable after the date of this Agreement but in no event later than the public announcement of fifteenth (15th) Business Day following the execution date of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration obligations 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 the Purchaser Buyer to accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex A hereto, including I (the condition that a number of Shares representing not less than a majority of the Shares “Offer Conditions”). The date on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of which Buyer commences the Offer is referred to as the “Offer Commencement Date”.
(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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in 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 (other 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 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 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 in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by without the Company in writingprior written consent of the Company, no Buyer shall not:
(i) waive or change may be made which decreases the price per Share payable in Minimum Condition (except to the Offer, which changes extent permitted under paragraph (A) of Annex I);
(ii) decrease the Offer Consideration;
(iii) change the form of consideration to be paid in the Offer, which reduces ;
(iv) decrease the maximum number of Shares to be purchased sought in the Offer, which imposes conditions to ;
(v) extend or otherwise change the Offer in addition to those set forth in Annex A 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, whichExpiration Time, except as hereinafter set forth otherwise provided in this Subsection 1.01(a)Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, extends the period modify or supplement any of the Offer beyond 45 days after the date of commencement of the Offer, Conditions or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on the date first published, sent or given to the holders of Shares.
(d) The Offer shall initially expire 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 of the Offer and (ii) such date that is six (6) Business Days after the date of the EGM (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 2.01(e), 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 as follows:
(i) for the minimum period as required by any rule, regulation, 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 not contain any untrue statement extend the Offer on one or more occasions in consecutive periods of a material fact 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 omit such other duration as may be agreed to state any material fact required to be stated therein or necessary by Buyer and the Company) in order to make permit the statements thereinsatisfaction of such Offer Condition(s); provided, however, that if Buyer determines in light of good faith, after consultation with its outside legal counsel, that at any then-scheduled Expiration Time occurring during the circumstances under which they are madefirst one hundred eighty (180) days following the date hereof, 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 Condition set forth in paragraph (B) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer shall be permitted to extend the ParentOffer on such occasion for up to twenty (20) Business Days; provided further, however, that (x) Buyer shall not be required to extend the Purchaser 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 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 agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Eight hereof and none of the events or conditions set forth in Annex A I hereto (the “Tender Offer Conditions”) shall have occurred occurred, as promptly as reasonably practicable, and be existingin any event within ten (10) calendar days, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 cause the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to commence (within the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number meaning of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and including the rules and regulations promulgated thereunder thereunder, the “Exchange Act”)) an offer to purchase all outstanding Shares at the Offer Price, shall, upon commencement of the Offer but after affording the Company a reasonable opportunity to review and comment thereon, file Schedule TO and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligation of the Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to the satisfaction or waiver 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 Common Shares. The Offer shall remain open until the date that is twenty (20) Business Days (as such term is defined in Rule 14d-1(c)(6) under the Exchange Act) after 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 two succeeding sentences 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; provided, however, that the 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 the Purchaser, the Purchaser may extend the Offer from time to time; provided, however, that, on the 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 Merger shall have not expired or been terminated, the Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations, (ii) if any of the conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, the 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 the matters described in such paragraphs (a) or (b) shall have become final and nonappealable; or (iii) if all of the Tender Offer Conditions are satisfied and more than 50% but less than 90% of the outstanding Common Shares on a fully diluted basis (excluding Options (as defined herein) which are not exercisable for 60 days) 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 up to a maximum of ten (10) additional Business Days in the aggregate. 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 practicable after such expiration date of the Offer. 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, Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Condition (as defined in Annex I hereto).
(c) Parent and the Purchaser represent that the Offer Documents will comply in all material respects with the 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 holders of SharesCompany’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 are were 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, the Purchaser Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article IX and Section 8.1, (ii) none of the events or conditions set forth in Annex A I (other than paragraphs (f) and (i)) shall have occurred and be existingcontinuing and (iii) the Company shall have complied with its applicable obligations under Section 1.2, then, not later than as promptly as practicable after the first business day after execution of this Agreement, the Parent shall issue a public announcement effectiveness of the execution of this AgreementForm 10, and not later than the fifth in any event, within five (5) business day after the date of the public announcement of the execution of this Agreementdays thereafter, the Purchaser shallshall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer, subject to (i) there being validly tendered in the provisions Offer (in the aggregate) and not withdrawn prior to the expiration of this Agreementthe Offer that number of Shares which, commence together with the Shares then beneficially owned by the Purchaser, represents at least a tender offer (majority of the "Offer") for all Shares outstanding on a fully diluted basis and no less than a majority of the voting power of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as capital stock of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank entitled to vote in the election of California, as Rights Agent directors or (if a greater majority) upon the adoption of this Agreement (collectively, the "Shares"“Minimum Condition”) at a price and (ii) the satisfaction or waiver of $10.50 per Share, net the other conditions and requirements set forth in Annex I. Subject to the seller prior satisfaction or waiver by the Purchaser of the Minimum Condition and the other conditions and requirements set forth in cash. The Annex I, the Purchaser shall consummate the Offer in accordance with its terms and accept for payment exchange, and pay for exchange the Offer Consideration for, all Shares which have been validly tendered and not withdrawn pursuant to the Offer at as soon as practicable after the earliest time following 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 all conditions to is twenty (20) business days following the commencement of the Offer set forth in Annex A hereto shall have been satisfied or waived by (the Purchaser“Initial Expiration Date”). The obligation of the Purchaser to accept for paymentexchange, purchase and pay for to exchange the Offer Consideration for, any Shares validly tendered pursuant on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex A hereto, including the condition that a number I. The Offer shall be made by means of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior an offer to the expiration date of the Offer exchange (the "Minimum Condition"). Solely for purposes of determining whether “Offer to Exchange”) that contains the terms set forth in this Agreement, the Minimum Condition has been satisfied, any Shares owned by Parent or and the other conditions and requirements set forth in Annex I. The Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to decrease the Offer. The Purchaser expressly reserves Offer Consideration, change the right to increase the price per Share form of consideration payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces reduce the maximum number of Shares to be purchased in the OfferOffer 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), which imposes all conditions to the Offer in addition to those set forth in Annex A 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 shall not have been satisfied or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingwaived, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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, extend the Initial Expiration Date, for such period as the Purchaser may determine, (y) the Purchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (z) the Purchaser may, in its sole discretion, extend the Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date of the Offer that would otherwise be permitted under clause (x) of this sentence 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 failure 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 Parent Purchaser, or this Agreement is terminated prior to the Purchaser at any time to exercise any exchange 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, 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 promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall (i) file with the Securities and Exchange Commission (the "“SEC") ”), pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”) and (ii) file with 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 Offer and the Merger (together with all amendments, supplements and exhibits thereto, the “Registration Statement”). The Registration Statement shall contain an offer include a preliminary prospectus (the “Prospectus”) containing the information required under Rule 14d-4(b) promulgated under the Exchange Act. The Schedule TO shall include the summary term sheet required under Regulation M-A and, as exhibits, the Offer to purchase Exchange and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 collectively with the Prospectus, and the documents therein pursuant to which the Offer will be made, together with any amendments and supplements or amendments theretothereto and to the Prospectus, the "“Offer Documents"”). The Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities laws. The Company shall provide the Purchaser with all information concerning the Company and its directors, officers and affiliates as shall be required to be included in the Offer Documents 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 comply as be made by the Purchaser without providing the Company and its counsel a reasonable opportunity to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")review any such amendment or supplement, and the rules Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and regulations promulgated thereunder and, on its counsel.
(d) The Purchaser shall use its reasonable efforts to have the date filed Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof with the SEC and on to keep the date first published, sent or given Registration Statement effective as long as is necessary to complete the Offer and the Merger. Notwithstanding any other provision herein to the holders contrary, no amendment or supplement to the Registration Statement will be made by the Purchaser without the approval of Sharesthe 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 any 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 are were made, not misleading, except the party that no representation is made by discovers that information shall promptly notify the Parent other party and an appropriate amendment or the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer Documents if and to the extent that supplement describing such information shall have become false or misleading in any material respect, and each of the Parent and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be promptly 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 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 Parent and Company hereby consents to the Purchaser agree to provide the Company and its counsel inclusion in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect to the Offer Documents promptly after of the receipt recommendation of the Company Board of Directors referred to in clause (iii) of Section 3.4
(g) Notwithstanding anything herein to the contrary, the 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 the withholding of any such comments. The Company and its counsel Offer Consideration for such purpose shall be given a reasonable opportunity to review and comment upon treated as the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination payment thereof to the stockholders Person from whom such amount was withheld for purposes of the Companydetermining whether such Person 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 this Agreement shall not have been terminated in accordance with Article IX Section 8.01 hereof and that none of the events or conditions set forth in Annex clause (2) of Exhibit A hereto shall have occurred and or be existing, then, not Parent shall cause Sub promptly (but in no event later than the first five 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 days following the public announcement of the execution terms of this Agreement, ) to commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementEXCHANGE ACT")) an offer to purchase all outstanding shares of common stock of the Company, par value $.01 per share (the "SHARES"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 5.25 per Share, net to the seller in cashcash (the "OFFER"). The Purchaser 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 all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 Purchaseras soon as practicable under applicable law. The obligation of Sub to consummate the Purchaser Offer and to accept for payment, purchase payment and to pay for any Shares tendered pursuant to the Offer thereto shall be subject to the only those conditions set forth in Annex Exhibit A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer hereto (the "Minimum ConditionOFFER CONDITIONS"). 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 Sub regardless of the circumstances giving rise to any such condition condition, or (including any action or inaction by except as set forth below with respect to 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 AgreementMinimum Condition (as defined in Exhibit A)) or may be waived by the Parent or the PurchaserSub, in whole or in part part, at any time and from time to time, time in its their 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 or any of its Subsidiaries (as defined in Section 9.11 hereof) will be tendered to Sub pursuant to the Offer. Sub will not, without the prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (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 Exhibit A are satisfied as of any scheduled expiration date of the Offer, Sub may extend the Offer for up to ten business days in the aggregate, and may extend the Offer for a longer period with the prior written consent of the Company or as required by law. If the conditions set forth in Exhibit A are not satisfied or, to the extent permitted by this Agreement, waived by Parent or Sub as of any scheduled expiration date, Sub may extend the Offer from time to time (but not beyond the date that is fifty business days from the date hereof) and, in any event, upon the written request of the Company, Sub will extend the Offer from time to time until the earlier of the consummation of the Offer or forty business days from the date hereof (provided, that Sub shall not be obligated to make any such extension if (i) 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) As promptly as reasonably practicable following execution On the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Sub shall file or cause to be filed with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "SCHEDULE 14D-1") with respect to the Offer, Offer which shall contain an the offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 other ancillary Offer documents and the documents therein instruments pursuant to which the Offer will be made, together made (collectively with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC. Parent and Sub agree to provide the Company with, and to consult with the Company regarding, any comments that may be received from the SEC or dissemination its staff with respect to the stockholders Offer Documents promptly after receipt thereof.
(c) In the event that the Minimum Condition is not satisfied on any scheduled expiration date of the CompanyOffer but there shall have been validly tendered and not withdrawn as of such expiration 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 this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Article IX and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events or conditions set forth in Annex A shall have occurred and be existingI hereto, then, not later than the first business day as promptly as reasonably practicable 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 execution terms of this Agreement, but in no event later than one week after the Purchaser shalldate hereof, subject to Acquisition shall (and Parent shall cause Acquisition to) commence (within the provisions meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act")), commence a tender an offer (the "Offer") for all of the outstanding shares of Common Stockcommon stock, together with the associated rights issued pursuant to the Rights Agreement dated as par value $.01 per share, of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company (individually a "Share" and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price for each Share of $10.50 per Share16.00, net to the seller in cashcash (the "Offer Price"). The Purchaser shall obligation of Acquisition to accept for payment and to pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for any Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition that a number of Shares representing not less than a majority at least two-thirds of the Shares on a fully fully- diluted basis shall have been validly tendered 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 not withdrawn unvested Company Stock Options that vest prior to the expiration date Effective Time, but excluding any Shares held by the Company or any of the Offer its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex I hereto. 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 not withdrawn pursuant to the Offer. The Purchaser Acquisition 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, unless previously approved by that (i) the Minimum Condition may be amended or waived only with the prior written consent of the Company in writing, and (ii) no change may be made which decreases the price per Share payable in the Offer, which that changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought 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 A 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)I, extends the period expiration date 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 (including 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 AI 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 a manner that is materially adverse material compliance with all of its covenants in this Agreement, subject to holders the cure provisions of Shares. paragraph (b)(ii) of Annex I. Notwithstanding the foregoing, the Purchaser Acquisition may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date for any period required by any rule or regulation of the Offer, any of Securities and Exchange Commission (the conditions "SEC") applicable to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or 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 a an aggregate period of not more than 15 five business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, sentence.
(c) As soon as practicable on the date of such extensionthe Offer is commenced, 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser Acquisition shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall contain as an offer exhibit or incorporate by reference the Offer to purchase Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement (such advertisement. Parent and Acquisition agree that they shall cause the Schedule 14D-1 and the documents therein pursuant to which TO, the Offer will be made, to Purchase and all amendments or supplements thereto (which together with any supplements or amendments thereto, constitute the "Offer Documents"). The Offer Documents shall ) to comply as to 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 on 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 Documentsother Applicable Laws. Each of the Parent, the Purchaser Acquisition and the Company agrees promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser Acquisition further agrees agree to take all steps necessary to cause the Offer Documents 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 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 the Purchaser Acquisition agree to provide in writing the Company and its counsel in writing with any comments the Parent, the Purchaser 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. 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 (Policy Management Systems Corp), Merger Agreement (Computer Sciences Corp), Merger Agreement (Computer Sciences Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 hereof and provided that none of the events or conditions set forth in clauses (a) through (g) of paragraph 2 of Annex A shall have occurred and be existingshall not have been waived by Purchaser, 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 as promptly as practicable after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer hereof (the "Offer"and in any event within ten (10) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"Business Days), between Purchaser shall (and Parent shall cause Purchaser to) commence (within the Company and First Interstate Bank meaning of California, as Rights Agent (collectively, Rule 14d-2 under the "Shares"Exchange Act) the Offer to purchase all Shares at a price of $10.50 per Share, net share equal to the seller in cash. Offer Price (as such Offer Price may be adjusted pursuant to Section 1.1(h)).
(b) The obligation of Purchaser shall upon expiration of the Offer to accept for payment and pay for all any Shares which have been validly tendered and not validly withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the satisfaction, or waiver by Parent or Purchaser, of the conditions set forth in Annex A hereto(the “Offer Conditions”). Subject to the satisfaction, or waiver by Parent or Purchaser, of the Offer Conditions (including the condition that a number of Shares representing not less than a majority satisfaction of the Minimum Condition), Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares on a fully diluted basis shall have been validly tendered and not validly withdrawn prior pursuant to the expiration date of Offer as promptly as practicable after the Offer Expiration Date (the "Minimum Condition"time of such acceptance for payment, and the payment for such Shares, the “Acceptance Time”). Solely for purposes The Offer Price payable in respect of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been each Share validly tendered and not validly withdrawn pursuant to the OfferOffer shall be paid net to the seller 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.
(c) 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. The Parent and Purchaser expressly reserves reserve the right (but shall not be obligated), at any time and from time to time in their sole discretion, to waive any Offer Condition, to increase the price per Share payable in the Offer Price or to make modify or amend any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat without the written consent of the Company, unless previously approved by Purchaser shall not (i) decrease the Company in writingOffer Price, no (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes (iii) reduce the form of consideration to be 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 A 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 (iv) amend or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period modify any of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) Conditions in a manner that is materially adverse in any material respect to the holders of Shares. Notwithstanding Shares or impose conditions to the foregoing, Offer that are different than or in addition to the Purchaser may, without the consent of the CompanyOffer Conditions, (iv) amend or waive the Minimum Condition, or (vi) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for Expiration Date in a period of not more manner other than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 and 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 accordance with 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 right, and each such right shall be deemed an ongoing right which that 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.
(bd) As promptly Unless extended as reasonably practicable following execution of provided in this Agreement, the Offer shall expire at midnight (New York City time) on the date (the “Initial Expiration 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 of the Offer (within the meaning of Rule 14d-2 under the Exchange Act). Notwithstanding the foregoing, if, on the Initial Expiration Date any of the Offer Conditions set forth in paragraphs 1(a), 2(a) or 2(b) of Annex A are not satisfied or, to the extent waivable in accordance with the terms hereof, has not been waived by Parent or Purchaser, then Purchaser shall extend the Offer for a period of five (5) Business Days to permit such Offer Conditions to be satisfied. Thereafter, if so requested by the Company by written notice delivered to Purchaser on or prior to the date the Offer is then scheduled to expire, Purchaser shall extend the Offer for one or more periods of not more than five (5) Business Days each, to permit the Offer Conditions set forth in paragraphs 1(a), 2(a) or 2(b) of Annex A to be satisfied, or to the extent waivable in accordance with the terms hereof, validly waived by Purchaser. Purchaser may, but shall not be obligated to, extend (and re-extend) the Offer and its 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 the Parties hereto may agree), to permit any Offer Conditions to be satisfied. Purchaser shall, without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or any rule or regulation of Nasdaq, in each case, applicable to the Offer: provided, however, that notwithstanding anything contained in this Agreement, Purchaser shall not be required to (i) extend the Offer (A) beyond the Outside Date or (B) at any time that Parent or Purchaser is permitted to terminate this Agreement pursuant to Article VII, or (ii) waive any Offer Conditions.
(e) 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 Article VII.
(f) If the Acceptance Time occurs, Purchaser may, in its sole discretion, commence a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act (a “Subsequent Offering Period”) of up to twenty (20) Business Days. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all Shares as promptly as practicable after any such Shares are validly tendered during such Subsequent Offering Period. The Offer Price payable in respect of each Share validly tendered during such Subsequent Offering Period shall be paid net to the seller in cash, without interest, subject to the withholding of any Taxes required by applicable Law.
(g) On or prior to the commencement date of the Offer, Parent and the Purchaser shall shall: (i) file or cause to be filed with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC") Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which shall supplements and exhibits thereto, the “Schedule TO”) that will contain an or incorporate by reference the offer to purchase and the Shares pursuant to the Offer, the form of the related letter of transmittal and transmittal, the summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents therein and instruments pursuant to which the Offer will be mademade (collectively, and together with any all exhibits, amendments and supplements or amendments thereto, the "“Offer Documents"”); and (ii) cause the Schedule TO and related Offer Documents to be disseminated to holders of Shares in accordance with applicable Law. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that may be required by applicable Law or reasonably requested in connection with any action contemplated by this Section 1.1(g). The Company and its counsel shall be given reasonable opportunity to review and comment on the Offer Documents shall comply as prior to form in all material respects the filing thereof with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")SEC, and the rules Parent and regulations promulgated thereunder and, on the date filed with the SEC Purchaser shall give reasonable and on the date first published, sent or given good faith consideration 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 comments made by the Parent or the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documentsand its counsel. Each of the Parent, the Purchaser and the Company agrees promptly to correct promptly any information supplied provided by it specifically for inclusion use 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 respect or as otherwise required by applicable Law. Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Upon receipt of any written or oral comments by Parent, Purchaser or their counsel from the SEC or its staff with respect to the Offer Documents, Parent and the Purchaser agree to to: (i) promptly provide the Company and its counsel in writing with a copy of any such written comments (or a description of any such oral comments); (ii) provide the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review comment on any proposed response thereto, and comment upon give reasonable and good faith consideration to any such comments made by the Company and its counsel; and (iii) promptly provide the Company with copies of any written comments or responses submitted by Parent and Purchaser in response thereto.
(h) 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, exchange of shares or other like change with respect to Company Common Stock occurring or having a record date on or after 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 Documents and all amendments and supplements thereto Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to their filing with such action.
(i) Purchaser shall be entitled to deduct and withhold from any consideration payable to any holder of any Company Stock Certificate (in his or her capacity as a holder of Company Common Stock) such amounts as are required to be deducted or withheld from such consideration under the SEC Code or dissemination any provision of state, local or foreign tax Law or under any other applicable Law. To the extent such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the stockholders of the CompanyPerson to whom such amounts would otherwise have been paid.
Appears in 3 contracts
Sources: Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Lacrosse Footwear Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 and none of the events or conditions no event set forth in Annex A hereto shall have occurred and be existingcontinuing, then, not as promptly as practicable (but in no event later than the first ten (10) business day days 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 execution of this Agreementhereof), the Purchaser shall, subject to the provisions of this Agreementand Parent shall cause Purchaser to, commence a tender (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act") ) an offer (the "Offer") to purchase for cash all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Shares at a price of $10.50 0.57 per Share, net to the seller in cashcash (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 Company shall not tender Shares held by it or by any of 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 pay for all Shares tendered as soon as it is legally permitted to do so under applicable law.
(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 and providing for an initial expiration date (the "Expiration Date", which have been validly tendered and not withdrawn pursuant term shall also indicate any later date to which the Offer at is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the earliest time following expiration Exchange Act) from the date of commencement of the Offer. The Purchaser shall not, and Parent shall cause the Purchaser not to, decrease the Offer that all Price or decrease the number of Shares sought in the Offer, amend the conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes impose conditions to the Offer in addition to those set forth in Annex A heretoA, which broadens without 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 period prior written consent of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of SharesCompany. Notwithstanding the foregoing, the The Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (iiA) extend the Offer for a period of not the shortest time periods which it reasonably believes are necessary, in one or more such periods, but in no event more than 15 an additional fifteen (15) business days beyond the latest expiration date that would otherwise be permitted under clause (i) if Parent and Purchaser are not in material breach of this sentence 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 date of such extensionExpiration Date, more than two-thirds but less than 90 percent of the Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It Offer is agreed 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 set forth in Annex A are for to the sole benefit Offer were satisfied as of the Parent date such extension or subsequent offering period, as the case may be, is announced. In addition, the Offer Price may be increased and the Purchaser and Offer may be asserted extended to the extent required by law in connection with such increase, in each case without the Parent or the Purchaser regardless consent 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 OfferCompany.
(bc) As promptly as reasonably practicable following execution of this AgreementOn the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which the "Schedule TO"). The Schedule TO shall contain an offer or shall incorporate by reference the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which TO, the Offer will be madeto Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements or amendments thereto, collectively the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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 Parent and Purchaser shall further take all steps necessary to cause the ParentOffer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the Purchaser 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 supplied provided by it specifically for inclusion 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 each of respect prior to the Parent Expiration Date and the Purchaser further agrees to shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given an opportunity to review and comment 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 shall cause the Purchaser agree to to, provide the Company and its counsel in writing with any comments the that Parent, 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 comments and its counsel 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 given a reasonable opportunity provided to review and comment upon Purchaser all of the Offer Documents and all amendments and supplements thereto prior funds necessary to their filing with the SEC or dissemination purchase any Shares that Purchaser becomes obligated to purchase pursuant to the stockholders of the CompanyOffer.
Appears in 3 contracts
Sources: Merger Agreement (Emusic Com Inc), Merger Agreement (Emusic Com Inc), Merger Agreement (Universal Music Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth VII hereof, as promptly as practicable but in Annex A shall have occurred and be existing, 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 no event later than the fifth business day after following the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementand Parent shall cause Purchaser to, commence a tender offer (within the "Offer") for all meaning of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer at the Offer Price.
(b) The obligations of Purchaser to consummate the Offer and to accept for payment and pay for any of the Shares tendered shall be subject to the conditions set forth on Annex I hereto (the "Tender Offer Conditions"), including the condition that a number of Shares equal to a majority of the Shares outstanding on a fully diluted 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 conversion of all convertible securities or other rights to purchase or acquire Shares with a conversion price less than the rules Offer Price) shall be validly tendered and regulations promulgated thereunder andnot withdrawn prior to the Expiration Date or shall be held by Parent, Purchaser or any affiliate thereof or issuable upon the exercise or conversion of any equity or debt security held by Parent, Purchaser or any affiliate thereof which is then exercisable or convertible (the "Minimum Condition"). The amount of the Offer Price shall be net to the seller in cash, upon the terms and subject to the conditions of the Offer and subject to reduction for any applicable federal back-up or other applicable withholding or stock transfer taxes. The Offer shall remain open until 12:00 Midnight, New York City time, on the date filed with twentieth business day following the SEC commencement of the Offer. Parent and Purchaser agree that if all of the conditions set forth in Annex I hereto are not satisfied by the time of any scheduled termination of the Offer then, provided that all such conditions are reasonably capable of being satisfied, 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, the "Expiration Date" means 12:00 Midnight, New York City time, on the date first publishedtwentieth business day following the commencement of this Offer, sent unless Purchaser extends the Offer as permitted 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 thereinby this Agreement, in light of which case the circumstances under "Expiration Date" means the latest time and date to 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 Companyis extended.
Appears in 3 contracts
Sources: Merger Agreement (Cybermedia Inc), Merger Agreement (Networks Associates Inc/), Merger Agreement (Networks Associates Inc/)
The Offer. (a) Provided that this Agreement shall not have --------- been terminated in accordance with Article IX Section 8.01 hereof and none of the events set forth in Annex A hereto shall have occurred or be existing, Parent shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than September 12, 1995. The obligation of Parent to accept for payment and to pay for Shares tendered pursuant to the Offer shall be subject to the condition that at least 2,986,004 Shares (or such greater number of Shares as equals 75% of the Shares then outstanding) shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Tender Condition") and shall also be subject to the satisfaction of the other conditions set forth in Annex A shall have occurred hereto. Subject to the terms and be existingconditions of the Offer (including the Minimum Tender Condition), 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following as promptly as reasonably practicable after 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser Parent expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company Board in writing, no change may will be made which that decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the Offer, which reduces adds additional conditions to the maximum Offer, decreases the number of Shares to be purchased being tendered for in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A 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 or makes any change 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 period terms and conditions of the Offer beyond 45 days after which is inconsistent with the date third sentence of commencement of the Offer, this Section 1.01(a) or which is otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 hereto are for the sole benefit of the Parent and the Purchaser and may be asserted by Parent or, subject to the Parent or the Purchaser regardless of the circumstances giving rise to any such condition (including any action or inaction by the Purchaserpreceding sentence, 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 PurchaserParent, 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 Per Share Amount, subject to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right applicable withholding taxes, shall be deemed an ongoing right which may be asserted at any time paid net to the seller in cash, upon the terms and from time subject to time. Any determination by the Parent or the Purchaser with respect to any conditions 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.
(b) As promptly soon as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Acquisition shall file with the Securities and Exchange Commission (the "SEC")
(i) 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 required, a Rule 13E-3 Transaction Statement (the "Schedule 13E-3") with respect to the execution and delivery of the Stockholders Option Agreement and the Offer, which . The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase and a form of the related letter of transmittal and any related summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any all supplements or amendments theretothereto and the Schedule 14D-1, the "Offer Documents"). The Offer Documents shall and Schedule 13E-3 will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were made, not misleading, except that no representation is made by the Parent or the Purchaser Acquisition with respect to information supplied by the Company in writing specifically for inclusion in the Offer DocumentsDocuments or Schedule 13E-3. Each of the Parent, the Purchaser Acquisition and the Company each agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser Acquisition each further agrees to take all steps necessary to cause the Offer Documents and 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 federal securities laws. The Parent and the Purchaser Acquisition agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser Acquisition 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) 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 its counsel 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 given a reasonable opportunity unreasonably withheld), respond promptly to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with any comments made by the SEC or dissemination with respect to the stockholders of 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 this Agreement shall not have been terminated in accordance with Article IX Section 8.1, as promptly as practicable following the date hereof and none of in any event within five (5) Business Days following the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution date of this AgreementAgreement (or such other later date as the parties may mutually agree in writing), Parent and Merger Sub (i) shall amend the Parent shall issue a public announcement of Offer to reflect the execution of this Agreement, Agreement and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDEDhereof, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser 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"”) a Tender Offer Statement on Schedule 14D-1 and make all deliveries, filings, publications, mailings and telephonic notices required to be made in connection with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madeunder the federal securities Laws, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements including Regulations 14D and 14E of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and including the rules and regulations promulgated thereunder andthereunder, on the date “Exchange Act”) (such documents filed or required to be filed with the SEC and such other filings, deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the “Offer Documents”) and (iii) shall use their reasonable best efforts to consummate the Offer. If the Offer is consummated, Parent will cause Merger Sub to accept for payment and pay for any shares of Company Common Stock tendered pursuant to the Offer, subject only to the conditions that (i) there shall be validly tendered and not withdrawn prior to the expiration of the Offer such number of shares of Company Common Stock that, 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 Common Stock outstanding determined on a Fully Diluted Basis immediately prior to the date first publishedof expiration of the Offer (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto (collectively with the Minimum Condition, sent the “Tender Offer Conditions”) have been satisfied or given 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 be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in a manner that is materially adverse to the holders of Sharesshares 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) Parent and Merger Sub may, without the consent of the Company, from time to time, in their sole discretion, extend the Expiration Date for such period (not contain to exceed ten (10) Business Days on any untrue statement 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 of the 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 not withdrawn) pursuant to the Offer is less than 90% of the number of shares of Company Common Stock outstanding determined on a material fact 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 omit to state any material fact required more times (the period of each such extension to be stated therein or necessary in order determined by Merger Sub) for up 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 fifteen (15) Business Days in the Offer Documents. Each aggregate for all such extensions), provided, that at the time of the Parent, the Purchaser 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 unless the Minimum Condition shall have been satisfied.
(d) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, agrees promptly to correct promptly any information supplied provided by it specifically for inclusion 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 the Parent and the Purchaser Merger Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable Federal federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents in advance of their filing with the SEC and dissemination to stockholders of the Company. Parent and the Purchaser agree Merger Sub shall provide to provide the Company and its counsel copies in writing with of any comments and shall inform the Company of any oral comments that Parent, the Purchaser Merger Sub 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 any such written and comment upon the Offer Documents oral comments and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Companyproposed responses.
Appears in 3 contracts
Sources: Merger Agreement (Pilgrims Pride Corp), Merger Agreement (Gold Kist Inc.), Merger Agreement (Gold Kist Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII and subject to the conditions set forth in Annex I (including that none of the events or conditions set forth in Annex A therein (the "Exchange Offer Conditions") shall have occurred and be existingexisting and not waived by Parent), thenMerger Sub shall, not later and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase all of 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 business day after execution of this Agreement, the Parent shall issue a public announcement by Parent and the Company of the execution of this Agreement, and not later than shall take the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject actions specified in Section 1.1(c). Each Company Common Share accepted by Merger Sub pursuant to the provisions Offer shall be exchanged for the right to receive from Parent (i) a fraction of this Agreement, commence a tender offer share of Parent Common Stock (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 fractional shares, as provided below and (ii) an amount in cash (the outstanding "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, together with the associated rights Stock shall be issued pursuant to the Rights Agreement dated Offer. All fractional shares of Parent Common Stock that a Company Stockholder would otherwise be entitled to receive as a result of December 5the Offer shall be aggregated, 1992and if a fractional share results from such aggregation, as amended such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the "Company Rights Agreement"), between Base Price by (ii) the Company and First Interstate Bank fraction of California, as Rights Agent (collectively, the "Shares") at a price share of $10.50 per Share, net Parent Common Stock to the seller in cashwhich such holder would otherwise have been entitled. The Purchaser shall obligation of Merger Sub to accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for any Company Common Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the Exchange Offer Conditions, this Agreement and applicable Laws. The Company agrees that any Company Common Shares held by the Company will not be tendered pursuant to the Offer.
(b) Parent and Merger Sub expressly 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 make any other changes to the terms and conditions set forth of the Offer; provided, however, that without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (i) decrease the Offer Price or change the form of consideration payable in Annex A heretothe Offer, (ii) decrease the number of Company Common Shares sought in the Offer, (iii) modify or amend the Exchange Offer Conditions or impose conditions to the Offer in addition to the Exchange Offer Conditions in any manner adverse to the Company Stockholders, (iv) waive the Minimum Condition or (v) except as provided in Section 1.1(d), extend the Offer if all of the Exchange Offer Conditions are satisfied. Upon the terms and subject to the satisfaction or waiver of the conditions of the Offer and this Agreement (including the condition that a number of Exchange Offer Conditions), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for all Company Common Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer as promptly as possible after expiration of the Offer, unless terminated in accordance with its terms. Parent shall provide or cause to be provided to Merger Sub on a timely basis shares of Parent Common Stock and funds sufficient to accept for payment and pay for any and all Company Common Shares that Merger Sub becomes obligated to accept for payment and pay for pursuant to the Offer.
(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 "Minimum ConditionForm S-4"). Solely for purposes ) to register the offer and sale of determining whether the Minimum Condition has been satisfied, any Shares owned by shares of Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn Common Stock pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable Offer shall be made by means of a preliminary prospectus included in the Offer or to make any other changes in Form S-4 and containing the terms and conditions of information required by Rule 14d-4(b) under the Offer; PROVIDEDExchange Act (the "Preliminary Prospectus"), HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions subject only to the Exchange Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered Conditions. As soon 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, reasonably practicable on the date of such extensionthe Offer is commenced, 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser Merger Sub shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the OfferOffer that will comply in all material respects with the provisions of all applicable federal securities laws, which shall and will contain an offer to purchase and (including as exhibits) or incorporate by reference the Preliminary Prospectus, forms of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the any other documents therein pursuant required to which be filed in connection with the Offer will be made(which documents, together with any supplements or amendments thereto, are referred to collectively herein as the "Offer Documents"), which shall be mailed to the Company Stockholders. The Merger Sub agrees promptly to correct the Form S-4, the Schedule TO and the Offer Documents if and to the extent that they shall comply as to form have become false or misleading in all any material respects with the requirements of the Securities Exchange Act of 1934, as amended respect (the "Exchange Act"), and the rules and regulations promulgated thereunder andCompany, on with respect to information supplied by it specifically for use in the date filed with Form S-4, the SEC and on Schedule TO or the date first published, sent or given to the holders of SharesOffer Documents, shall not contain promptly notify Merger Sub and its counsel of any untrue statement required corrections of a material fact 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 omit the Offer Documents to state include any material fact required to be stated therein or 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, 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents Form S-4 and the Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer 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 federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Form S-4, the Schedule TO and the Offer Documents and all amendments and supplements thereto prior to their filing before they are filed with the SEC and before they are distributed to Company Stockholders. Merger Sub shall provide the Company and its counsel copies of any written comments and telephone notification of any oral comments that Merger Sub or dissemination its counsel receive from the SEC or its staff with respect to the stockholders 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 this Agreement shall not have been terminated As promptly as practicable (and in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 any event within seven Business Days) after the date of the public announcement of the execution of this Agreementhereof, the Purchaser shallshall (and Parent shall cause Purchaser to) commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to purchase all the outstanding Shares at the Offer Price, subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the provisions Expiration Date that number of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common StockShares which, together with the associated rights issued pursuant 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 outstanding (determined on a fully diluted basis assuming conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or the Purchaser, of the other conditions set forth herein and in Annex I.
(b) Subject to the Rights Agreement dated as satisfaction of December 5the Minimum Condition and the satisfaction, 1992or waiver by Parent or the Purchaser, as amended (of the "Company Rights Agreement"), between the Company other conditions set forth herein and First Interstate Bank of California, as Rights Agent (collectivelyin Annex I, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares which have been validly tendered and not properly withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions as promptly as practicable after Purchaser is legally permitted to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaserdo so under applicable Law. The obligation Offer Price payable in respect of the Purchaser to accept for payment, purchase each Share validly tendered and pay for Shares tendered not properly withdrawn pursuant to the Offer shall be subject paid net to the seller in cash, without interest.
(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 A hereto, including I. Parent and the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves reserve 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, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, no the Purchaser shall not (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces (iii) reduce the maximum number of Shares sought to be purchased in the Offer, which imposes (iv) amend or waive the Minimum Condition, (v) amend any of the other conditions to the Offer in addition to those set forth in Annex A heretoI in a manner adverse to the holders of Shares 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 20 Business Days from and including the date of 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 broadens the scope 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 at the scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth herein and in Annex I) have not been satisfied, or waived by Parent or the Purchaser, and if this Agreement shall not have been terminated in accordance with Article 7, the Purchaser may (in its sole discretion, without consent of the Company) and, to the extent requested by the Company in writing prior to such scheduled Expiration Date, 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 determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; provided, which increases however, that the minimum number of Shares which must Purchaser shall not be tendered as a required to extend the Offer if any condition to the acceptance Offer has not been satisfied on or prior to May 22, 2013 (the “Outside Date”), beyond the Outside Date. In addition, if this Agreement shall not have been terminated in accordance with Article 7, the Purchaser shall extend the Offer for payment any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and payment Exchange Commission (the “SEC”) or its staff.
(f) Notwithstanding the foregoing, if necessary to obtain sufficient Shares (including Shares issuable upon the exercise of the Top-Up Option) to reach the Short Form Threshold, the Purchaser may, in its sole discretion (and Parent may cause the Purchaser to), provide for shares a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of up to 10 Business Days, the length of the initial “subsequent offering period” and each extension thereof to be determined by the Purchaser in its sole discretion. 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, 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 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, which waives the Minimum Condition if such waiver would result Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in less than a majority of accordance with applicable Law, all tendered Shares being accepted for payment or paid for pursuant to the Offer, which, except registered holders thereof.
(h) As soon as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after practicable on the date of the commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC") Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and related Purchase, a form of letter of transmittal and a form of summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). The Parent and the Purchaser agree to cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit as and to state any material fact the extent 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 Exchange Act. The Company shall promptly provide Parent or and the Purchaser with respect to information supplied by the Company in writing specifically writing, for inclusion in the Offer Documents, all information concerning the Company that is required under the Exchange Act to be included in the Offer Documents. Each of the Parent, the Purchaser Parent and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, agree to promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees to take all steps necessary agree to cause the Offer Documents Documents, as so corrected 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 Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsExchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC, and all amendments Parent and supplements the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto prior by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders 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 CompanyPurchaser 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 (Allergan Inc), Merger Agreement (MAP Pharmaceuticals, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and So long as none of the events or conditions set forth in clauses (a) through (h) of Annex A I hereto shall have occurred and be existing, 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 execution of this Agreementor exist, the Purchaser shall, subject to and Parent shall cause the provisions of this AgreementPurchaser to, commence a tender offer (within the "Offer"meaning of Rule 14d-2(a) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as promptly as practicable after the date hereof, but in any event not later than May 4, 1998, the Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to such Shares, net to the seller in 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 "Expiration Date"). As promptly as practicable, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1" and together with the documents therein pursuant to which the Offer will be made, and with any supplements or amendments thereto, the rules "Offer 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 obligation of Parent and regulations promulgated thereunder the Purchaser to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to 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 (without giving pro forma effect to the potential issuance of any Shares issuable under the Stock Option Agreement) (the "Minimum Condition") and to the satisfaction or waiver of the 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 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 Parent shall cause the Purchaser 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 as soon as practicable after the Expiration Date.
(c) The Offer Documents will comply in all material respects with the 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 holders of SharesCompany'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 made therein, in light of the circumstances under which they are were 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 (Hein Werner Corp), Merger Agreement (Snap on Pace Co), Merger Agreement (Snap on Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 hereof and none of the events or conditions set forth in Annex A I hereto shall have occurred and be existing, then, not later than the first business day after execution Purchaser or a direct or indirect subsidiary of this Agreement, the Parent as designated by Parent shall issue a public announcement 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, and not later than the fifth but in any event within 15 business day after days following the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser Parent to accept for payment, purchase and pay for payment any Shares tendered pursuant to the Offer shall be subject to the satisfaction of those conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by I. Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser 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 price per Per Share payable in the Offer 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, that, unless previously approved subject to reduction only for any applicable Federal back-up withholding or stock transfer taxes payable by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 partiesseller. The Company agrees that no Shares held by the Company or any of its Subsidiaries (as defined below) will be tendered in pursuant to the Offer.
(b) Without the prior written consent of the Company, Parent shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I) or (iv) impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Shares. Upon the terms and subject to the conditions of the Offer, Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer, all Shares validly tendered and not withdrawn prior to the expiration of the Offer.
(c) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") having only the conditions set forth in Annex I hereto. As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements 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 OfferOffer that will comply in all material respects with the provisions of all applicable Federal securities laws, which shall and will contain (including as an offer exhibit) or incorporate by reference the Offer to purchase Purchase and forms of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madedocuments, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the "Offer Documents"). The Parent and Purchaser agree promptly to correct 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 documents shall comply as to form have become false or misleading in all any material respects with the requirements of the Securities Exchange Act of 1934, as amended respect (the "Exchange Act"), and the rules and regulations promulgated thereunder andCompany, on with respect to written information supplied by it specifically for use in the date filed with Schedule TO, Schedule 13E-3 or the SEC and on the date first published, sent or given to the holders of SharesOffer Documents, shall not contain promptly notify Parent of any untrue statement required corrections of a material fact 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 omit the Offer Documents to state include any material fact required to be stated therein or information that shall become necessary in order to make the statements therein, in light of the circumstances under which they are were 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO or Schedule 13E-3, as so corrected or supplemented, to be filed with the SEC and the Offer 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 securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on any Offer Documents before they are filed with the SEC.
(d) The Offer to Purchase shall provide for an initial expiration date of 20 business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement. Purchaser agrees that it shall not terminate or withdraw the Offer Documents and all amendments and supplements thereto prior to their filing with or extend the SEC or dissemination expiration date of the Offer unless at the expiration date of the Offer the conditions to the stockholders Offer 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 conditions 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 this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in clause (iii) of the Tender Offer Conditions shall have occurred, as promptly as reasonably practicable (but in no event later than ten (10) Business Days) after the date of this Agreement, Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 of the Exchange Act) the Offer at the Offer Price. Subject to the terms and conditions of this Agreement and to the satisfaction or conditions waiver of the Tender Offer Conditions set forth in Annex A shall have occurred and be existingI (including the Minimum Condition), 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 execution of this Agreement, the Purchaser shall, subject to and Parent shall cause Purchaser to, promptly after the provisions of this AgreementExpiration Date, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for for, after giving effect to any withholding tax, all Shares which have been such shares of Seller Common Stock validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be and not withdrawn.
(b) Upon the terms and subject to the conditions set forth in Annex A heretothis Agreement, including the condition that a number of Shares representing not less than a majority each of the Shares on a fully diluted basis shall have been validly tendered 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 not withdrawn prior to 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 "Minimum Condition"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”). Solely 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 purposes periods of determining whether up to 10 Business Days each until the earlier of (x) the date on which the Minimum Condition has been satisfiedmet 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, any Shares owned by Parent or however, that Purchaser shall not be deemed required to have been validly tendered and not withdrawn pursuant to extend the OfferOffer beyond the Outside Date. The Purchaser expressly reserves the right right, subject to increase compliance with the price per Share payable in Exchange Act, to waive, amend or modify any term or condition of the Offer or to make any other changes in the terms and conditions of the Offerits sole discretion; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by without the Company in writingprior written consent of Seller, no Purchaser shall not:
(i) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes decrease the form 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 in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions 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 A heretoI; or
(v) amend any term of the Offer in any manner materially adverse to holders of shares of Seller Common Stock.
(d) Purchaser may, which broadens without the scope consent of such conditionsSeller, which increases elect to provide a subsequent offering period for the minimum number Offer in accordance with Rule 14d-11 of Shares which must be tendered as a condition to the Exchange Act following its acceptance for payment and payment for of shares of Seller Common Stock 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 period of the Offer beyond 45 days after .
(e) On the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Parent and Purchaser may, without the consent of the Company, shall (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions file or cause to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file filed with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, Offer which shall contain an or incorporate by reference the offer to purchase and forms of the related letter of transmittal and transmittal, summary advertisement (such Schedule 14D-1 and the other ancillary documents therein and instruments required thereby pursuant to which the Offer will be made, together made (collectively with any supplements or , amendments and exhibits thereto, and all deliveries, mailings and telephonic notices required by Rule 14d-3 under the "Exchange Act, the “Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and (ii) cause the rules Offer Documents to be disseminated to the Seller Stockholders as and regulations promulgated thereunder and, to the extent required by the Exchange Act. Seller and its counsel shall be given a reasonable opportunity to review and comment on the date filed Offer Documents prior to their filing 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 Purchaser agree to provide Seller with (i) any comments or other communications, whether written or oral, that may be received from the SEC and on the date first published, sent or given its staff with respect to the holders 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 Sharestheir 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, 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer Documents if and to the extent that party which discovers such information shall have become false or misleading in any material respectpromptly notify the other party, and each of the Parent and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to an appropriate amendment or supplement describing such information shall be filed with the SEC and to be disseminated to holders of Sharesthe Seller Stockholders, in each case as and to the extent required by applicable Federal securities lawsLaw or any applicable rules or regulations of any stock exchange. The 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 agree on a timely basis the funds necessary to provide the Company and its counsel in writing with pay for any comments the Parent, the shares of Seller Common Stock that Purchaser or their counsel may receive from the SEC or its Staff with respect becomes obligated to purchase pursuant to the Offer Documents promptly after the receipt of such comments. The Company and shall cause Purchaser to fulfill 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 Companyobligations 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 this Agreement shall not have been terminated in accordance with Article IX its terms and none of the events or conditions set forth in Paragraphs (a) through (f) of Annex A I hereto shall have occurred and or be existing, then, not no later than the first two (2) business day days 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 execution terms of this Agreement, the Purchaser shallshall commence the Offer, subject 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 Price net to the provisions seller thereof in cash, provided, however, that the Purchaser shall use its best efforts to commence the Offer as soon as practicable after the public announcement of the terms of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller but in cashno event later than two business days after such public announcement. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to expire and terminate on the conditions set forth in Annex A hereto, including twentieth (20th) business day from the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date commencement of the Offer (the "Minimum ConditionExpiration Date"). Solely for purposes of determining whether ; provided, however, that the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase extend the price per Share payable Expiration Date up to ten (10) additional business days in the Offer or order to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including satisfy any of the conditions set forth in Annex A) 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 terminated in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent accordance with its terms and none of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 events set forth in Paragraphs (a) through (f) of Annex A are for I hereto shall have occurred or be existing, no later than (2) two business days after the sole benefit public announcement 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.
(b) As promptly as reasonably practicable following execution terms of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a the Purchaser's Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, 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 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 two business days after such public announcement. The obligation of Purchaser to accept for payment or pay for any Common Shares 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 expiration date), Purchaser will extend the Offer from time to time, in each case, for the shortest time period that it reasonably believes is necessary for the consummation of the Offer. Each of the parties hereto shall use its reasonable best efforts to cause all conditions precedent set forth in Annex I to be fulfilled and avoid the occurrence of any event or to cure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
(b) The Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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, the Purchaser Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Aei Resources Inc), Merger Agreement (Zeigler Coal Holding Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A nothing shall have occurred and be existingthat, thenhad the Offer referred to below been commenced, not later than would give rise to a right to terminate 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued Offer pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in paragraphs (ii)(a) - (ii)(g) of Annex A) I hereto, then as promptly as practicable after the date hereof (and in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, any event within eight (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 8) business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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), Merger Sub shall (A) or may be waived by commence (within 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 meaning 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), ) an offer (the "Offer") to purchase any and all of the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given outstanding shares of Company Common Stock at a price per Share equal to the holders of SharesPer Share Amount, shall not contain any untrue statement of a material fact or omit net to state any material fact required to be stated therein or necessary the seller in order to make the statements thereincash, 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 without interest and (B) after affording the Company in writing specifically for inclusion in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the "Offer 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 Documents Documents. The Offer shall be subject only to the condition that there shall be validly tendered in accordance with the terms of the Offer and all amendments and supplements thereto not withdrawn prior to their filing the Expiration Date (as hereinafter defined) a number of Shares that, together with the Shares then owned by Parent and/or Merger Sub or any other subsidiary of Parent, represents at least a majority of the Shares outstanding on a Fully-Diluted Basis (as hereinafter defined) (the "Minimum Condition") and to the other conditions set forth in Annex I hereto. Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer, provided that without the prior written consent of the Company, (i) the Minimum Condition may not be waived, (ii) 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 Per Share Amount or the number of Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I and (iv) no other change may be made to any term of the Offer in any manner adverse to the holders of the Shares. Notwithstanding the foregoing, except as otherwise provided in this Section 1.01(a), without the consent of the Company, Merger Sub shall have the right to extend the 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 time if, at the scheduled or extended Expiration Date, any of the conditions to the Offer shall not have been satisfied or waived, until such conditions are satisfied or waived or (ii) for any period required by any rule, regulation, interpretation or position of the SEC or dissemination the staff thereof applicable to the stockholders Offer or any period required by applicable law. The Offer shall remain open until 12:00 midnight on the date that is twenty (20) business days after the commencement of the Company.Offer (the "Expiration Date"), unless Merger Sub 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
Appears in 2 contracts
Sources: Merger Agreement (Elite Information Group Inc), Merger Agreement (Elite Information Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1, and none of the events or conditions set forth in clause (c) of Annex A I shall have occurred and be existingcontinuing, then, not as promptly as practicable after the date hereof (but in no event 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 eleven (11) Business Days after the date of the initial public announcement of the execution of this Agreement), the Purchaser shall, subject and Parent shall cause the Purchaser to, commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer.
(b) Subject to (i) there being validly tendered in the Offer and not properly withdrawn prior to the provisions Expiration Date that number of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common StockShares which, together with the associated rights issued pursuant number of Shares, if any, then owned of record by Parent or the Purchaser or with respect to which Parent or the Rights Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of all outstanding Shares (determined on a Fully Diluted Basis) entitled to vote (A) in the election of directors or (B) upon the adoption of this Agreement dated as and approval of December 5the Merger, 1992, as amended (on the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent date Shares are accepted for payment (collectively, the "Shares"“Minimum Condition”); and (ii) at a price the satisfaction or waiver by Parent or the Purchaser of $10.50 per Sharethe other conditions and requirements set forth in Annex I, net to the seller in cash. The Purchaser shall, and Parent shall cause the Purchaser to, accept for payment and pay for all Shares which have been validly tendered and not properly withdrawn pursuant to the Offer 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 as promptly as practicable after the Purchaser is legally permitted to accept do so under applicable Law (the date and time of acceptance for payment, the “Acceptance Time”). 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 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 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 conditions and requirements set forth in Annex A hereto, including I. Parent and the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves reserve the right to increase the price per Share payable in Offer 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; PROVIDEDprovided, HOWEVERhowever, that, that unless previously approved by the Company in writing, no change may be made which decreases the price per Share Purchaser shall not (i) decrease the Offer Price payable in the Offer, which changes (ii) change the form of consideration to be paid payable in the Offer, which reduces (iii) reduce 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 A 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 (iv) amend or waive the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment Condition, (v) amend or paid for pursuant to modify the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the other conditions set forth in Annex A) I in a manner that is materially adverse to the holders of Shares. Notwithstanding , (vi) extend the foregoingExpiration Date other than in accordance with this Agreement, or (vii) amend any other term of the Offer which is adverse to the holders of Shares.
(d) Subject to 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, (i) if on or prior to any then scheduled Expiration Date any of the conditions of the Offer are not satisfied or waived, extend the Offer iffor such period as the Purchaser determines, at the scheduled expiration date provided that such extension shall be in increments of not more than ten (10) Business Days if all of the Offerconditions 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 Expiration Date, any of the conditions to the Purchaser's obligation to purchase Shares shall Offer have not be been satisfied until such time as such conditions are satisfiedor, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 extent waivable by the Parent or the Purchaser regardless of the circumstances giving rise pursuant 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, subject to Parent’s rights in whole Article 7, the Purchaser 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 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 part at accordance with Section 5.4, except to the extent that prior to the then scheduled Expiration Date (i) 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, (ii) the Company Board has reconfirmed the Company Board Recommendation, and (iii) the withdrawal or rejection of such Acquisition Proposal and the reconfirmation of the Company Board Recommendation shall have been publicly announced by the Company. In addition, the Purchaser shall extend the then scheduled Expiration Date for any time period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Securities and from time Exchange Commission (the “SEC”) or its staff or the New York Stock Exchange (“NYSE”).
(f) If necessary to timeobtain 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 failure 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, 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 Parent Purchaser, or this Agreement is terminated prior to the Purchaser at any time to exercise any acquisition 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, 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.
(bh) As promptly soon as reasonably practicable following execution on the date of this Agreementthe commencement of the Offer, the Parent and the Purchaser shall file with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC") Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits: the Offer to purchase and related Purchase, a form of letter of transmittal and transmittal, the notice of guaranteed delivery, a form of summary advertisement (such Schedule 14D-1 and other ancillary Offer documents and instruments required by the documents therein Exchange Act pursuant to which the Offer will shall be mademade (collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). The Parent and the Purchaser agree to cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit as and to state any material fact the extent 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 Exchange Act. Parent or and the Purchaser with respect Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information supplied provided by the Company in writing specifically such party for inclusion use in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer 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 each of the Parent and the Purchaser further agrees to take all steps necessary agree to cause the Offer Documents Documents, as so corrected 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 Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsExchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC, and all amendments Parent and supplements the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto prior by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders 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 CompanyPurchaser 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 this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A nothing shall have occurred and be existingthat would give rise to a right to terminate this Agreement pursuant to Article 8, then, not later than Buyer shall commence (within the first business day after execution meaning of this Agreement, Rule 14d-2 promulgated under the Parent shall issue a public announcement of ▇▇▇▇ ▇▇▇) the execution of this Agreement, and not later than the fifth business day Offer as promptly as reasonably practicable after the date of this Agreement but in no event later than the public announcement of fifteenth (15th) Business Day following the execution date of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration obligations 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 the Purchaser Buyer to accept for payment, purchase and pay for for, any Shares tendered pursuant to the Offer shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Annex A hereto, including I (the condition that a number of Shares representing not less than a majority of the Shares “Offer Conditions”). The date on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of which Buyer commences the Offer is referred to as the “Offer Commencement Date.”
(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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in 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 (and Parent shall cause Buyer to) (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 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-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”). 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 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, 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 in part, any of the Offer Conditions and to make any change in the terms of or conditions to the Offer; PROVIDEDprovided, HOWEVERthat without the prior written consent of the Company, that, unless previously approved by Buyer shall not (and Parent shall cause Buyer to not):
(i) waive or change the Company in writing, no Minimum Condition (except to the extent contemplated under paragraph (A) of Annex I);
(ii) decrease the Offer Consideration;
(iii) change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces ;
(iv) decrease the maximum number of Shares to be purchased sought in the Offer, which imposes conditions to ;
(v) extend or otherwise change the Offer in addition to those set forth in Annex A 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, whichExpiration Time, except as hereinafter set forth otherwise provided in this Subsection 1.01(a)Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, extends the period modify or supplement any of the Offer beyond 45 days after the date of commencement of the Offer, Conditions or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on the date first published, sent or given to the holders of Shares.
(d) The Offer shall initially expire 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 of the Offer and (ii) such date as is six (6) Business Days after the date of the EGM (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 2.01(e), 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 as follows:
(i) for the minimum period as required by any rule, regulation, 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 not contain any untrue statement extend the Offer on one or more occasions in consecutive periods of a material fact 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 omit such other duration as may be agreed to state any material fact required to be stated therein or necessary by Parent, Buyer and the Company) in order to make permit the statements thereinsatisfaction of such Offer 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 satisfied within such ten (10) Business Day extension period, 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 sole then-unsatisfied Offer Condition is the Minimum Condition and the Pre-Wired Asset Sale Ruling has been obtained or it becomes apparent to Parent, in light its reasonable judgment, that the Pre-Wired Asset Sale Ruling will not be received, Buyer shall not be required to extend the 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 circumstances under which they are madelast 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 misleading, except be required to extend the Offer at any time that no representation is made by the Parent or the Purchaser with respect Buyer is permitted to information supplied by the Company terminate this Agreement; or
(iii) to such other date and time as may be agreed in writing specifically for inclusion in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Purchase Agreement (Mobileye N.V.), Purchase Agreement (Intel Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX V, Purchaser shall, and none Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the events or conditions set forth in Annex A shall have occurred U.S. Securities Exchange Act of 1934, as amended (together with its rules and be existing, then, not later than the first business day after execution of this Agreementregulations, the Parent shall issue a public announcement “Exchange Act”)), 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 the execution of this AgreementSection 1.1(d), and not later than the fifth business day within ten (10) Business Days) after the date of this Agreement; provided, however, if the public announcement Company is not ready to file the Schedule 14D-9 on the same date as the commencement of the execution of this AgreementOffer, then such deadline shall automatically be extended until such date as the Company is ready to file the Schedule 14D-9. Purchaser shall, subject to shall give the provisions of this Agreement, commence a tender offer Company three (the "Offer"3) for all Business Days notice of the outstanding shares expected commencement date.
(b) The obligation of Common Stock, together with the associated rights issued pursuant Purchaser to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all any Shares which have been validly tendered and not validly withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered 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 “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Purchaser, in their sole discretion, of the conditions or requirements set forth in Annex A attached hereto (together with the Minimum Condition, the “Offer Conditions”), other than the Minimum Condition. 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 in cash, without interest, on the terms and subject to the conditions set forth in Annex A heretothis 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 condition that a 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 representing not less than subject to the Offer, (iii) add to the conditions set forth on Annex A, (iv) amend or modify any Offer Condition in a majority of manner that is adverse to the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to 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 "Minimum Condition"). Solely for purposes terms 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 not withdrawn pursuant Offer in a manner that is adverse to the Offer. The Company Shareholders; provided that, notwithstanding the foregoing, Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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, exercisable in its sole discretion. The failure by ) to increase the Parent Offer Price or the Purchaser at any time to exercise waive 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 Offer Conditions, other than 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 OfferMinimum Condition.
(bd) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the U.S. Securities and Exchange Commission (the "“SEC"”) a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) on the date that the Offer is commenced, which Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and related letter Purchase, form of transmittal letter and summary advertisement form of notice of guaranteed delivery (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madeTO, including all such exhibits, together with any supplements or amendments thereto, the "“Offer Documents"”) and, subject to the Company’s compliance with Section 1.2(b). The , cause the Offer Documents shall comply as to form be disseminated to the Company Shareholders in all material respects accordance with the applicable requirements of the Securities Exchange Act. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required by the 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 on 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 set forth in the Offer Documents. Each of the Parent, the Documents or that is otherwise reasonably requested by Parent or Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer Documents if and 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 each of the this Section 1.1(d). Parent and the Purchaser further agrees to shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and 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 Purchaser one hand, agree to provide 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 its counsel in writing to the extent required by applicable Law. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect dissemination thereof to the Offer Documents promptly after Company Shareholders, the receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment on such Offer Documents, and Parent and Purchaser shall give reasonable consideration to any such comments. Parent and Purchaser shall promptly notify the Company upon the Offer Documents and all amendments and supplements thereto prior to their filing with receipt of any comments from the SEC, or any request from the SEC for amendments or dissemination supplements, to the stockholders Offer Documents, and shall promptly provide 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 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 of the SEC with respect to the Offer 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 that In accordance with the provisions of this Agreement and provided that nothing shall not have been terminated occurred which would result in accordance with Article IX and none a failure of any of the events or conditions set forth in Annex A shall have occurred A, attached hereto and be existingmade a part hereof, thenas promptly as practicable, not and in no event later than the first fifth (5th) business day after execution of this Agreementfollowing the date hereof, the Parent shall issue a public announcement of cause the execution of this AgreementPurchaser to, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shallshall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, subject to as amended (the provisions of this Agreement"Exchange Act"), commence 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, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") of the Common Stock (defined hereafter) at a price of Twenty Three Dollars and Forty Cents ($10.50 23.40) per Share, share net to the seller in cash. The Purchaser shall accept for payment , 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 pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer Offer, shall be in accordance with the terms of this Agreement, subject to the conditions set forth in Annex A hereto. The Purchaser shall, including subject only to the condition that a number of Shares representing not less than a majority satisfaction or waiver of the conditions set forth on Annex A hereto, accept for payment and pay for all Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 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 to Purchase") containing the terms set forth in this Agreement, the Minimum Condition (as defined in Annex A hereto) and the other conditions set forth in Annex A hereto. Notwithstanding the foregoing, the Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to and make any other changes in to the terms and or conditions of the Offer; PROVIDEDOffer (or waive in whole or in part, HOWEVERat the sole discretion of the Purchaser any of such conditions), thatprovided, unless previously approved however, that the Purchaser will not, without the prior written consent of the Company (such consent to be authorized by the Company in writingBoard of Directors of the Company), no change may be made which decreases (i) waive the price per Share payable Minimum Condition, (ii) subject to clause (z) of the proviso in the Offerimmediately following sentence, which changes extend the Offer if all of the Offer conditions are satisfied or waived, (iii) decrease the Share Price, change the form of consideration to be paid payable in the Offer, which reduces Offer or decrease the maximum number of Shares to be purchased in the Offersought, which imposes (iv) impose additional conditions to the Offer in addition to those set forth in Annex A 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 (v) waive the condition described in this Subsection 1.01(a), extends clause (x) of Annex A hereto or (vi) amend the period conditions of the Offer beyond 45 days after or any other term of the Offer in any manner adverse to the holders of Shares (other than insignificant changes or amendments or other than to waive any condition). The initial expiration date of the Offer shall be 20 business days following commencement of the Offer, or which otherwise amends the terms of the Offer (including any of such date and time, as may be extended in accordance with the conditions set forth terms hereof, is referred to as the "Expiration Date"); provided, however, and notwithstanding anything in Annex A) in a manner the foregoing to the contrary, it is understood and agreed that is materially adverse to holders of Shares. Notwithstanding the foregoing, 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, Company (ix) extend the Offer if, at the scheduled expiration date of the Offer, if any of the conditions to the Purchaser's obligation to purchase Shares shall Offer have not be satisfied until such time as such conditions are been satisfied, for the minimum period of time necessary to satisfy such condition; (y) for any period required by any order, decree or ruling of, or any rule, regulation, interpretation or position of, any Governmental Entity (as hereafter defined) applicable to the Offer; or (iiz) extend the Offer for a period of not more than 15 five business days beyond the latest expiration date that would otherwise be permitted under clause (ix) or (y) of this sentence ifsolely for the purpose of obtaining valid tenders (which are not withdrawn) of 90% of the Shares. A record holder who validly tenders, on and does not withdraw, pursuant to the date Offer at least 500,000 shares of Common Stock which such holder beneficially owns, may receive, upon acceptance of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn shares by the Purchaser pursuant to the Offer. It is agreed that , payment therefor by wire transfer of immediately available funds to an account in the conditions set forth United States designated in Annex A writing by such holder at the time such shares 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 tendered pursuant 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.
(b) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which shall contain an offer the "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were made, not misleading, except that no representation is made by the Parent or the Purchaser with respect to information supplied furnished by the Company in writing specifically 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 by 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 the Parent, 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 the Parent and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, will promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to will take all steps necessary to cause the Offer Documents as so corrected 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 federal securities laws. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 before it is filed with the SEC. In addition, the Parent and the Purchaser agree to will provide the Company and its counsel in writing with any comments comments, whether written or oral, the Parent, the Purchaser or their counsel may receive from time to time 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 2 contracts
Sources: Merger Agreement (Ibp Inc), Merger Agreement (Foodbrands America Inc)
The Offer. SECTION 1.1 The Offer
(a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 occurred, as promptly as practicable, but in no event later than five business days after the public announcement of the execution hereof by the Purchaserparties, Parent shall commence (within the meaning of Rule 14d-2 under the Securities and Exchange Act of 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 (the "Shares"), at a price of $5.40 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 the Purchaser Parent to accept for payment, purchase payment and to pay for any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto.
(b) Parent shall not decrease the Offer Price, including change the condition that a form of consideration payable in the Offer, decrease the number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn sought pursuant to the Offer. The Purchaser expressly reserves , add additional conditions to the right to increase the price per Share payable in the Offer Offer, or to make any other changes in the terms and or conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made Offer which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which are otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, Shares without the prior written consent of the CompanyCompany (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 (20) business days from the date the Offer is commenced; provided, however, that without the Special Committee's consent, Parent may (i) from time to time extend the Offer ifOffer, if at the scheduled expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be have been satisfied until such time as such conditions are satisfiedor waived, or (ii) extend the offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission ("SEC") or the staff thereof applicable to the Offer and (iii) extend the Offer for a any reason on one or more occasions for an aggregate period of not more than 15 ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence ifsentence. 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 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 written request of the Company (acting through the Special Committee), 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 shall from time to time, in its sole discretion. The failure by time extend the Parent or Offer for up to twenty (20) business days from the Purchaser at any time to exercise any then- scheduled expiration date 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.
(bc) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto and including all exhibits thereto, the "Schedule 14D-1") with respect to the Offer, which 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 14D-1 shall contain as an offer exhibit or incorporate by reference the Offer to purchase Purchase (or portions thereof) and forms of the related letter of transmittal and summary advertisement (such advertisement. Parent and Sub agree that the Schedule 14D-1 and the documents therein pursuant to which 14D-1, the Offer will be made, to Purchase and all amendments or supplements thereto (which together with any supplements or amendments thereto, constitute the "Offer Documents"). The Offer Documents , and the Schedule 13E-3, shall comply as to 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 andand other applicable laws. The Company and its counsel, on and the date filed with the SEC Special Committee and on the date first published, sent or given to the holders of Sharesits counsel, shall not contain any untrue statement of a material fact or omit be given an opportunity 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in review the Offer Documents if and prior to the extent that such information shall have become false or misleading in any material respect, and each of filing thereof with the SEC. Parent and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser Sub agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser Sub 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 2 contracts
Sources: Merger Agreement (Ast Research Inc /De/), Merger Agreement (Samsung Electronics Co LTD /Fi)
The Offer. (a) Provided that So long as this Agreement agreement shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex A I hereto (as hereinafter provided) shall have occurred and be existing, then, not later than the first business day after execution of this Agreementor exist, the Purchaser shall, and Parent shall issue a public announcement cause the Purchaser to, commence (within the meaning of Rule 14d-2(a) of the execution Securities Exchange Act of this Agreement1934, and as amended (the "Exchange Act")) as promptly as practicable after the date hereof, but in any event not later than the fifth business day after following the date of the public announcement of the execution of this Agreementhereof, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") Offer for all of outstanding Shares at the outstanding shares of Common Stock, together with the associated rights issued pursuant Share Offer Price applicable to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "such Shares") at a price of $10.50 per Share, net to the seller in cashcash in accordance with this Agreement. The Purchaser shall accept initial expiration date for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A heretotwentieth business day from and after the date the Offer is commenced, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of as the Offerfirst business day in accordance with Rule 14d-2 under the Exchange Act (the "Initial Expiration Date"). As promptly as reasonably practicable, or which otherwise amends on the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration commencement date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a ), with respect to the Offer, the Purchaser's Tender Offer Statement on Schedule 14D-1 with respect to (the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement "Schedule 14D-1") (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer 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 Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents and any amendment or supplement thereto prior to the filing thereof with the SEC, and Parent and Purchaser shall consider such comments in good faith. Parent and Purchaser agree to provide to the Company 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 accept for payment or pay for any Shares tendered pursuant to the Offer will be subject to the satisfaction or waiver (to the extent permitted by this Agreement) of the conditions set forth in Annex I hereto (the "Offer Conditions"). 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) The Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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, the Purchaser Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Rsa Acquisition Corp), Merger Agreement (American Safety Razor Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 hereof and none of the events or conditions set forth in clauses (a) through (g) of Annex A I hereto shall have occurred and be existing, 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 execution of this Agreementor exist, the Purchaser shall, subject to and Parent shall cause the provisions of this AgreementPurchaser to, commence a tender offer (within the "Offer"meaning of Rule 14d-2(a) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as practicable after the date hereof, but in any event not later than five (5) business days following the date hereof. The initial expiration date for the Offer shall be October 15, 1999 (the "Expiration Date"). As promptly as practicable, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1" and together with the documents therein pursuant to which the Offer will be made, and with any supplements or amendments thereto, the rules and regulations promulgated thereunder and"Offer Documents"), on which shall contain (as an exhibit thereto) the date filed with Purchaser's Offer to Purchase (the SEC and on the date first published, sent or given "Offer to Purchase") that shall be mailed 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 Shares with respect to information supplied by the Company in writing specifically for inclusion in the Offer DocumentsOffer. Each The obligation of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary accept for payment or pay for any Shares tendered pursuant to cause the Offer Documents as so corrected will be subject only to be filed with there being validly tendered and not withdrawn prior to the SEC and expiration of the Offer, that number of Shares which represents at least seventy-five percent of the Shares entitled to be disseminated vote that are outstanding on a fully diluted basis (without giving pro forma effect to holders the potential issuance of Sharesany Shares issuable under the Stock Option Agreement) (the "Minimum Condition"), in each case as and to the extent required by applicable Federal 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 laws. The Parent and entitled generally to vote in the Purchaser agree to provide 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 its counsel in writing with any comments securities exercisable or convertible into such voting securities). Without the Parentprior written consent of the Company, the Purchaser shall not (i) decrease the Offer Price or their counsel may receive from change the SEC form of consideration payable in the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer; (iii) amend or its Staff with respect waive satisfaction of the Minimum Condition; or (iv) amend any other term of the Offer in any manner adverse to the holders of any Shares; provided, however, that if on the Expiration Date all conditions to the Offer Documents promptly after shall not have been satisfied or waived, the receipt of such comments. The Company and Purchaser may, from time to time in its counsel sole discretion, extend the Expiration Date (each extension to be for ten business days or less); provided, further, that the Expiration Date shall in no event be given a reasonable opportunity to review and comment upon extended past October 31, 1999 without the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders written consent of the Company.. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and purchase, as soon as practicable after the expiration of the Offer, all Shares validly tendered and not withdrawn prior to the expiration of the
Appears in 2 contracts
Sources: Merger Agreement (Effective Management Systems Inc), Merger Agreement (Ifs Ab)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1, and none of the events or conditions set forth in clause (c) of Annex A I shall have occurred and be existingcontinuing, 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 execution of this Agreement, the Purchaser shall, subject and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) the Offer as promptly as reasonably practicable following the Go-Shop Period Termination Date, but no later than five (5) Business Days thereafter (or such other date as the parties may mutually agree in writing).
(b) Subject to (i) there being validly tendered in the Offer and not properly withdrawn prior to the provisions Expiration Date that number of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common StockShares which, together with the associated rights issued pursuant number of Shares, if any, then owned of record by Parent or Purchaser or with respect to which Parent or Purchaser otherwise has, directly or indirectly, sole voting power, represents at least a majority of all outstanding Shares (determined on a Fully Diluted Basis) entitled to vote (A) in the Rights election of directors or (B) upon the adoption of this Agreement dated as and approval of December 5the Merger, 1992, as amended (on the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent date Shares are accepted for payment (collectively, the "Shares"“Minimum Condition”); and (ii) at a price the satisfaction or waiver by Parent or Purchaser of $10.50 per Sharethe other conditions and requirements set forth in Annex I, net to the seller in cash. The Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for all Shares which have been validly tendered and not properly withdrawn pursuant to the Offer at as promptly as practicable after Purchaser is legally permitted to do so under applicable Law (the earliest date and 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 the Purchaser to accept acceptance for payment, the “Acceptance Time”). 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 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 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 and requirements set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered I. Parent and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves reserve the right to increase the price per Share payable in Offer 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; PROVIDEDprovided, HOWEVERhowever, that, that unless previously approved by the Company in writing, no change may be made which decreases Purchaser shall not (i) decrease the price per Share Offer Price payable in the Offer, which changes (ii) change the form of consideration to be paid payable in the Offer, which reduces (iii) reduce 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 A 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 (iv) amend or waive the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment Condition, (v) amend or paid for pursuant to modify the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the other conditions set forth in Annex A) I in a manner that is materially adverse to the holders of Shares. Notwithstanding , (vi) extend the foregoingExpiration Date other than in accordance with this Agreement, or (vii) amend any other term of the Offer which is adverse to the holders of Shares.
(d) Subject to 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 that is twenty (20) Business Days following the commencement of the Offer (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) Purchaser may, without the consent of the Company, (i) extend the Offer if, at the if on or prior to any then scheduled expiration date of the Offer, Expiration Date any of the conditions to of the Purchaser's obligation to purchase Shares shall Offer is not be satisfied until such time as such conditions are satisfiedor waived, or (ii) extend the Offer for a such period as Purchaser determines, provided that such extension shall be in increments of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause ten (i10) Business Days if all of this sentence 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 on Annex A are for I other than the sole benefit of Minimum Condition have been satisfied or waived at such Expiration Date; provided, further, that Purchaser shall not be required to extend the Offer after the Company delivers, or is required to deliver, to Parent and the Purchaser and may be asserted a notice with respect to an Acquisition Proposal that has been received by the Parent Company, its Subsidiaries, or any Company Representative, in accordance with Section 5.4, except to the Purchaser regardless of extent that prior to the circumstances then scheduled Expiration Date (i) the Acquisition Proposal giving rise to any such condition notice has been withdrawn or the Company Board has rejected the Acquisition Proposal giving rise to such notice, (including any action ii) the Company Board has reconfirmed the Company Board Recommendation, and (iii) the withdrawal or inaction rejection of such Acquisition Proposal and the reconfirmation of the Company Board Recommendation have been publicly announced by the PurchaserCompany. In addition, 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with extend the then scheduled Expiration Date for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Securities and Exchange Commission (the "“SEC"”) or its staff or the National Association of Securities Dealers (together with any successor entity, the “NASD”).
(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), 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, Purchaser shall, and Parent shall cause 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) 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 VII. If this Agreement is terminated pursuant to Article VII, Purchaser shall, and Parent shall cause Purchaser to, promptly (and in any event within twenty-four (24) hours of such termination) terminate the Offer and shall not acquire Shares pursuant thereto. If the Offer is terminated by Purchaser, or this Agreement is terminated prior to the acquisition of Shares in the Offer, Purchaser shall promptly return, and shall cause any depositary acting on behalf of 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 commencement of the Offer, Parent and Purchaser shall file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits: the Offer to purchase and related Purchase, a form of letter of transmittal and transmittal, the notice of guaranteed delivery, a form of summary advertisement (such Schedule 14D-1 and other ancillary Offer documents and instruments required by the documents therein Exchange Act pursuant to which the Offer will shall be mademade (collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). The Parent and Purchaser agree to cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit as and to state any material fact the extent 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 Exchange Act. Parent or and Purchaser, on the Purchaser with respect one hand, and the Company, on the other hand, agree to promptly correct any information supplied provided by the Company in writing specifically such party for inclusion use in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer 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 each of the Parent and the Purchaser further agrees to take all steps necessary agree to cause the Offer Documents Documents, as so corrected 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 Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsExchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC, and all amendments Parent and supplements Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto prior by the Company and its counsel. In addition, Parent and Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, Purchaser or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders 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 the Companyreasonable additions, deletions or changes suggested thereto by the Company and its counsel. In the event that Parent and Purchaser receive any comments from the SEC or its staff with respect to the Schedule TO or the Offer Documents, they shall use their respective reasonable best efforts to respond promptly to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Pulmuone Cornerstone Corp), Merger Agreement (Monterey Gourmet Foods)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1, as promptly as practicable (and none in any event within seven (7) Business Days) after the date hereof, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase all of the events Shares at a price per share equal to the Offer Price.
(a) The obligation of Purchaser to, and of Parent to cause Purchaser to, accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Purchaser or Parent, of the conditions set forth in Annex A (the “Offer Conditions”). Subject to the satisfaction, or waiver by Purchaser or Parent, of the Offer Conditions, Purchaser shall have occurred (and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of cause Purchaser to) consummate the execution of this Agreement, Offer in accordance with its terms and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall irrevocably accept for payment and pay for all Shares which have been validly tendered and not validly withdrawn pursuant to the Offer at as promptly as practicable (and in any event within three (3) Business Days) after the earliest Expiration Date and in any event in compliance with Rule 14e-1(c) under the Exchange Act (the time following expiration of such acceptance for payment, the Offer “Acceptance Time”); provided, however, that all conditions notwithstanding anything herein to the Offer set forth contrary, in Annex A hereto no event shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser be required to accept for payment, purchase and pay for 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 Annex A hereto, including the condition that a number this Agreement. The time scheduled for payment for shares of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered Company Common Stock accepted for payment pursuant to and not withdrawn prior subject to the expiration date 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.”
(the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser b) The Offer shall be deemed made by means of an offer to have been validly tendered purchase that describes the terms and not withdrawn pursuant to conditions of the OfferOffer as set forth in this Agreement. The 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 price per Share payable in the Offer Price or to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat without the prior written consent of the Company, unless previously approved by Purchaser shall not (i) decrease the Company in writingOffer Price, no (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes (iii) reduce the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which 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 the Offer Conditions or (vi) extend or otherwise change any time period for the performance of any obligation of Purchaser or Parent (including the Expiration Date) in a manner other than pursuant to and in accordance with this Agreement.
(c) Unless extended as provided in this Agreement, the Offer shall initially be scheduled to expire at midnight, New York City time, on the date that is twenty (20) Business Days (calculated as set forth in Annex A heretoRule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) after the commencement of the Offer (the “Initial Expiration Date”). Notwithstanding the foregoing, (x) if, at midnight, New York City time, on the Initial Expiration Date or any subsequent date as of which broadens the scope 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 of the Offer for one or more consecutive increments of up to five (5) 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 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 been satisfied or waived (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) and (C) the Debt Financing has not actually been received by Purchaser or Parent, which increases and the minimum number of Shares which must be tendered as a condition lenders party to the acceptance for payment Debt Commitment Letter have not definitively and payment for shares irrevocably confirmed in writing to Parent and Purchaser that the Offer, which waives Debt Financing in an amount sufficient (together with cash available to Parent) to consummate the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment or paid for pursuant to Offer and the Offer, which, except as hereinafter Merger will be available at the anticipated Acceptance Time on the terms and conditions set forth in this Subsection 1.01(a), extends the period Debt Commitment Letter and subject only to the satisfaction of the Offer beyond 45 days after Conditions; and (z) if (A) the date of commencement of Financing Proceeds Condition has been satisfied or waived less than five (5) Business Days prior to the Offer, or which otherwise amends the terms then-scheduled expiration of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the then-scheduled expiration date of the Offer, any ) and (B) all of the other Offer Conditions have been satisfied or waived at the then scheduled expiration of the Offer (other than those conditions that by their nature are to be satisfied at the Expiration Date, but subject to the Purchaser's obligation satisfaction or waiver of such conditions), then Purchaser and Parent shall have a one-time right to purchase Shares extend the Offer pursuant to this sentence and such extension shall not be satisfied until such time as such conditions are satisfiedfor 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) be permitted to extend the Offer beyond the Outside Date without the prior written consent of the Company. Notwithstanding anything herein to the contrary, Purchaser shall, without the written consent of the Company, extend the Offer for a any period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence ifrequired by any rule, on the date of such extensionregulation, 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 interpretation or position of the Parent and the Purchaser and may be asserted by the Parent SEC or the Purchaser regardless its staff, any rule or regulation of the circumstances giving rise to NASDAQ, or 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 Purchaserother applicable Law, in whole or in part at any time and from time each case, applicable 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.
(bd) As promptly as reasonably practicable following execution Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except for a termination of this AgreementAgreement permitted in accordance with the terms of Section 7.1. In the event that this Agreement is terminated pursuant to Section 7.1, the Parent and the 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, 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 Offer, Purchaser and Parent shall (i) file or cause to be filed with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC") Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which shall supplements and exhibits thereto, the “Schedule TO”) that will contain an or incorporate by reference the related offer to purchase and the Shares pursuant to the Offer, the form of the related letter of transmittal and transmittal, the summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents therein and instruments pursuant to which the Offer will be mademade (collectively, and together with any all exhibits, amendments and supplements or amendments thereto, the "“Offer Documents"”); and (ii) cause the Schedule 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 review and comment on the Offer Documents shall comply as prior to form in all material respects the filing thereof with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")SEC, and the rules Purchaser and regulations promulgated thereunder and, on the date filed with the SEC Parent shall give reasonable and on the date first published, sent or given good faith consideration 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 comments made by the Parent or the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documentsand its counsel. Each of the ParentPurchaser, the Purchaser Parent and the Company agrees to promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents as so corrected (if applicable) 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 federal securities lawsLaws. The Upon receipt of any written or oral comments by Purchaser, Parent or their counsel from the SEC or its staff with respect to the Offer Documents, or any request from the SEC or its staff for amendments or supplements to the Offer Documents, Purchaser and the Purchaser Parent agree to (i) promptly provide the Company and its counsel in writing with a copy of any such written comments or requests (or a description of any such oral comments or requests); (ii) provide the ParentCompany 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 Purchaser Company and its counsel; (iii) provide the Company and its counsel an opportunity to participate with Purchaser, Parent or their counsel may receive from in any material discussions or meetings with the SEC or its Staff 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 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 event, 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 Offer Documents promptly after Company Common Stock that is prohibited by the receipt terms of such comments. The Company this Agreement.
(g) Subject in all respects to the other terms and its counsel shall be given a reasonable opportunity to review conditions of this Agreement and comment upon the Offer Documents and all amendments and supplements thereto prior Conditions, Parent shall provide or cause to their filing with be provided to Purchaser on a timely basis the SEC or dissemination funds necessary to purchase any shares of Company Common Stock that Purchaser becomes obligated to purchase pursuant to the stockholders of the CompanyOffer.
Appears in 2 contracts
Sources: Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01, and none of subject to the events or conditions Company having complied with its obligations set forth in Annex A Section 1.02(b), Merger Sub shall, and Acquiror shall have occurred and be existingcause Merger Sub to, then, not later than on or before the first business day date that is ten (10) Business Days after execution of this Agreement, the Parent shall issue a public announcement date of the execution of this Agreement, and not later than commence (within the fifth business day after meaning of Rule 14d-2 under the date Securities Exchange Act of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights Agreement"“Exchange Act”)) the Offer.
(b) The obligations of Merger Sub to, between the Company and First Interstate Bank of CaliforniaAcquiror to cause Merger Sub to, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all any Shares which have been validly tendered and not validly withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions are subject only to the Offer set forth in Annex A hereto shall have been satisfied satisfaction or waived waiver (if permitted by the Purchaser. The obligation Section 1.01(c) below) of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A heretoI (the “Offer Conditions”) and are not subject to any other conditions (without limiting the right of Merger Sub to terminate, including extend or modify the condition that a number 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 representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not validly withdrawn prior pursuant to the expiration 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 (the "Minimum Condition"). Solely Closing all funds necessary to purchase and pay for purposes of determining whether the Minimum Condition has been satisfied, any and all Shares owned by Parent or Purchaser shall be deemed that Merger Sub becomes obligated to have been validly tendered accept for payment and not withdrawn purchase pursuant to the OfferOffer 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. The Purchaser Acquiror and Merger Sub expressly reserves reserve the right to waive, to the extent permitted by applicable Law, any of the Offer Conditions, 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, provided that, unless otherwise provided in this Agreement or previously approved by the Company in writing, no Acquiror and Merger Sub shall not: (i) subject to Section 3.07, decrease the Offer Price or change may be made which decreases the price per Share form of consideration payable in the Offer, which changes (ii) decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, which imposes (iii) impose conditions to on the Offer in addition to those set forth in Annex A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, Conditions or which otherwise amends the terms of the amend any Offer (including any of the conditions set forth in Annex A) Condition in a manner that is materially adverse to the holders of Shares. Notwithstanding , (iv) waive or amend the foregoingMinimum Condition, the Purchaser may, without the consent (v) amend any other term of the CompanyOffer in a manner that is adverse to the holders of Shares, (ivi) extend or otherwise change the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time Expiration Date (as such conditions are satisfieddefined below) except as required or permitted by Section 1.01(e), or (iivii) extend provide a “subsequent offering period” within the Offer for a period meaning of not more than 15 business days beyond Rule 14d-11 promulgated under the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 OfferExchange Act.
(bd) As promptly as reasonably practicable following execution of this AgreementOn the date the Offer is commenced, the Parent Merger Sub shall, and the Purchaser Acquiror shall cause Merger Sub to, file with the U.S. Securities and Exchange Commission (the "“SEC"”) a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which Tender Offer Statement shall contain include an offer to purchase and related purchase, letter of transmittal and transmittal, summary advertisement and other required ancillary offer documents (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any exhibits, supplements or amendments thereto, the "“Offer Documents"). The ”) and 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 recommendation of the Company Board that the Company’s stockholders accept the Offer and tender all of their Shares pursuant to the Offer (the “Company Board Recommendation”) in the Offer Documents. Merger Sub shall, and Acquiror shall cause Merger Sub to, cause the Offer Documents and the filing and dissemination thereof to comply as to form in all material respects with the requirements of applicable Law. The Company shall promptly furnish to Acquiror and Merger Sub all information concerning the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Company and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the holders of Shares, shall not contain any untrue statement of a material fact or omit to state any material fact Shares that may be 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 set forth in the Offer DocumentsDocuments or reasonably requested in connection with any action contemplated by this Section 1.01(d), including communication of the Offer to the record and beneficial holders of Shares. Each of the Parent, the Purchaser and the Company parties agrees to promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent Acquiror and the Purchaser Merger Sub further agrees agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by applicable Federal securities lawsLaw. The Parent Acquiror and the Purchaser agree to Merger Sub shall provide the Company and its counsel in writing with any written comments the Parent(and shall orally describe any oral comments) that Acquiror, the Purchaser Merger Sub or their counsel may receive from time to time from the SEC or its Staff staff with respect to the Offer Documents promptly after the receipt of such comments. The 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 and its counsel shall be given with a reasonable opportunity to review and comment upon 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 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 amendments Offer Conditions have been satisfied or waived in accordance with this Agreement), and supplements thereto prior to their filing with (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 dissemination its staff or rules of the Nasdaq Stock Market applicable to the stockholders 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 (i) this Agreement shall not have been terminated in accordance with Article IX Section 8.1, (ii) the Company is prepared (in accordance with Section 2.2(b)) to file the Schedule 14D-9 on the same date as the Purchaser commences the Offer and (iii) none of the events set forth in clauses (i) through (vii) of Annex I shall have occurred or be continuing, as promptly as practicable (and in any event within seven (7) Business Days) after the date hereof, the Purchaser shall (and Parent shall cause the Purchaser to) commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the “Exchange Act”), the Offer to purchase all the outstanding Shares at the Offer Price, subject to: (i) the condition that 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 beneficially owned 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 as of immediately following the Acceptance Time (excluding from the number of tendered Shares, but not from the outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee)) and entitled to vote in the election of directors or (if a greater majority) on the adoption of this Agreement (collectively, the “Minimum Condition”); and (ii) the satisfaction, or written waiver (where permitted by applicable Law) by Parent or the Purchaser, of the other conditions and requirements set forth in Annex A shall have occurred and be existing, then, not later than I.
(b) Subject to the first business day after execution of this Agreement, the Parent shall issue a public announcement satisfaction of the execution of this AgreementMinimum Condition and the satisfaction, and not later than or written waiver (where permitted by applicable Law) by Parent or the fifth business day after the date Purchaser, of the public announcement of the execution of this Agreementother conditions and requirements set forth in Annex I, the Purchaser shall, subject to shall (and Parent shall cause and enable the provisions of this Agreement, commence a tender offer (the "Offer"Purchaser to) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not properly withdrawn pursuant to the Offer at promptly after the earliest time following expiration of Purchaser is legally permitted to do so under applicable Law in accordance with the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserExchange Act. The obligation Offer Price payable in respect of the Purchaser to accept for payment, purchase each Share validly tendered and pay for Shares tendered not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 3.2(f).
(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 and requirements set forth in Annex I. Parent and the Purchaser expressly reserve the right to waive (where permitted by applicable Law), in their sole discretion, in whole or in part, any of the conditions set forth in on Annex A heretoI, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. 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, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, no the Purchaser shall not (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces (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 adverse to the holders of Shares 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 5:00 p.m. (New York City time) on the date that is twenty-one (21) 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 imposes 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 in addition to those (including the Minimum Condition and the other conditions and requirements set forth in Annex A heretoI) have not been satisfied or, which broadens where permitted by applicable Law, waived in writing by Parent or the scope Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer on one or more occasions, for successive periods of up to twenty (20) Business Days each, in order to permit the satisfaction of such conditions. In addition, which increases the minimum number of Shares which must be tendered as a condition to Purchaser shall (and Parent shall cause the acceptance Purchaser to) extend the Offer for payment and payment for shares in the Offerany period or periods required by applicable Law or applicable rules, which waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment regulations, interpretations or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period positions of the Offer beyond 45 days after U.S. Securities and Exchange Commission (the date of commencement of the Offer, “SEC”) or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Sharesits staff. Notwithstanding the foregoing, the Purchaser mayshall not be required to extend the Offer for any reason beyond September 17, 2011 (the “Outside Date”).
(f) Notwithstanding the foregoing, if necessary to obtain sufficient Shares to reach the Short Form Threshold, the Purchaser shall (and Parent shall cause the Purchaser to), provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act of not more than twenty (20) Business Days in the aggregate; provided, however, that if the Purchaser exercises the Top Up Option pursuant to Section 2.4, it shall not be required to provide for a “subsequent offering period.” 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 any 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 2.1(f).
(g) 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 VIII. If this Agreement is terminated pursuant to Article VIII, the Purchaser shall (iand Parent shall cause the Purchaser to) extend promptly (and in any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer ifis terminated or withdrawn by the Purchaser, at or this Agreement is terminated prior to the scheduled expiration purchase of Shares in the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) 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 promptly as practicable on the date of the commencement of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC") Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and related Purchase, a form of letter of transmittal and transmittal, a form of summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents therein pursuant to which and instruments, if any, in respect of the Offer will be made(collectively, together with any amendments and supplements or amendments theretothereto and the Schedule TO, the "“Offer Documents"”). The Parent and the Purchaser agree to cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit as and to state any material fact the extent 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 Exchange Act. Parent or and the Purchaser with respect Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information supplied provided by the Company in writing specifically it for inclusion use in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer 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 each of the Parent and the Purchaser further agrees to take all steps necessary agree to cause the Offer Documents Documents, as so corrected 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 Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsExchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC, and all amendments Parent and supplements the Purchaser shall give due consideration to the additions, deletions or changes suggested thereto prior to their filing by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company with (i) a copy of any written comments or telephonic notice of any oral comments that may be received from the SEC or dissemination its staff with respect to the stockholders of Offer Documents promptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to provide comments on that response (to which due consideration shall be given) and to participate in such response, including by participating in any discussions with the CompanySEC.
(i) Parent shall provide or cause to be provided to the Purchaser on a timely basis the funds necessary to pay for any Shares that the Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Celera CORP)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX X and provided that none of the events or conditions set forth in Annex A I hereto shall have occurred and be existingcontinuing (and shall not have been waived by Parent), thenunless otherwise agreed by Parent and the Company, not later than the first business day as promptly as reasonably practicable 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 execution of this Agreement, Parent shall cause Merger Sub to commence (as defined in Rule 14d-2 promulgated under the Purchaser shallExchange Act) the Offer to purchase each issued and outstanding share of Company Common Stock in exchange for, subject to at the provisions election of this Agreementthe holder thereof, commence either: (i) a tender offer net amount of $26.50 in cash (the "OfferCash Consideration"), or (ii) for all 0.3256 of a share of Parent Common Stock (the outstanding shares of Common Stock"Stock Consideration" and, together with the associated rights 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 pursuant and outstanding immediately prior to the Rights Agreement dated as of December 5, 1992, as amended Acceptance Date (the "Company Rights AgreementMaximum Cash Election Number"), between 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 First Interstate Bank the Stock Consideration for another portion of California, as Rights Agent (collectively, 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 "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay Stock Consideration for all Shares which have been shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer 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. tendered.
(b) The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (1) the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration of the Offer, and not withdrawn, a number of Shares representing not less than a majority shares of Company Common Stock that, together with the shares of Company Common Stock owned by Parent and Merger Sub, represents at least 50.1% of the Shares shares of Company Common Stock outstanding on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")) and (2) the other conditions set forth in Annex I hereto. Solely for purposes Upon termination of determining whether the Minimum Condition has been satisfiedMerger Agreement, the Offer shall immediately expire and terminate without any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offershares of Company Common Stock being purchased thereunder. The Purchaser Merger Sub expressly reserves the right to increase waive any of the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and of or conditions of to the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by without the Company in writingprior written consent of the Company, no change may be made which by Merger Sub that (i) decreases the price per Share consideration payable in the Offer, which ; (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 aggregate amount of Cash Consideration available in the Offer or changes the relative amount of Cash Consideration available in the Offer, which ; (iv) reduces the maximum number of Shares to be purchased shares of Company Common Stock sought in the Offer, which ; (v) imposes conditions to the Offer in addition to those set forth in Annex A 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 I; (vi) modifies or waives the Minimum Condition if such waiver would result in less than a majority of Shares being accepted for payment Condition; (vii) except as provided below, changes the date on which the Offer is scheduled to expire; or paid for pursuant (viii) makes any other change that is adverse to the Offerholders of Company Common Stock or to holders that have elected a particular form of Offer Consideration. Notwithstanding the foregoing, whichunless the Company otherwise consents prior thereto, except as hereinafter set forth Merger Sub shall (or, in this Subsection 1.01(a)the case of clause (iii) below, extends shall at its option have the period of right to) extend the Offer for one or more periods (not in excess of ten business days each) (i) beyond 45 the scheduled expiration date, which shall initially be 25 business days after following the date of commencement of the Offer, or which otherwise amends up to the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingTermination Date, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be have been satisfied or, to the extent permitted, waived, until such time as such conditions are satisfiedsatisfied or, to the extent permitted, waived, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law, or (iiiii) extend the Offer for a an aggregate period of not more than 15 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if, on the date as of such extensiondate, more than two-thirds but less than 90 percent all of Shares the conditions to the Offer have been satisfied or waived, but the number of shares of Company Common Stock validly tendered and not properly 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. It 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 agreed 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 Annex A are for the sole benefit clauses (i) through (iii) 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 this subsection (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 Agreementc) 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 Offerhave been satisfied.
(bd) As promptly soon as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent shall, and the Purchaser Parent shall cause Merger Sub to, (i) file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 with respect TO relating to the Offer, which shall contain include an offer to purchase and related letter of transmittal transmittal/election form and summary advertisement such other ancillary documents as shall be required by applicable Law (together with any amendments or supplements thereto, the "Schedule TO"; and, together with the Offer Registration Statement (as defined below) and such Schedule 14D-1 and the other documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects , (ii) file with the requirements SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Securities Exchange Act of 1934, as amended Offer (the "Exchange ActOffer Registration Statement"), ) and (iii) disseminate the rules Offer Documents to holders of Company Common Stock. Each of the Company and regulations promulgated thereunder and, on Parent shall use their reasonable efforts to have the date filed Offer Registration Statement declared effective under the Securities Act as promptly as practicable after the filing thereof with the SEC and on 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 keep the Offer DocumentsRegistration Statement effective as long as necessary to complete the Offer. Each of the Parent, the Purchaser Merger Sub and the Company agrees agree promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees to shall cause Merger Sub to, take all steps necessary to cause the Schedule TO and the Offer Documents 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 federal securities lawsLaws. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents prior to their being filed with the SEC or disseminated to the holders of shares of Company Common Stock. Parent shall, and the Purchaser agree to Parent shall cause Merger Sub to, provide the Company and its counsel in writing with any comments the Parent, the Purchaser Parent and Merger Sub 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 comments and shall provide the Company and its counsel shall be given a reasonable an opportunity to review and comment upon participate in the Offer Documents and all amendments and supplements thereto prior response of Parent or Merger Sub to their filing with the SEC or dissemination to the stockholders of the Companysuch comments.
Appears in 2 contracts
Sources: Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Unilab Corp /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated pursuant to Article V, Offeror shall use its reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer as promptly as practicable (but in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not any event no 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 Business Day after the date of the public announcement Shareholders Meeting (which, if the Shareholders Meeting occurs on July 30, 2015 (China time), shall be July 31, 2015 (New York City time)) after the date of the execution Shareholder Meeting.
(b) The obligation of this Agreement, the Purchaser shall, subject Offeror to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all any Company Common Shares which have been validly tendered and not validly withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the satisfaction, or waiver by Offeror in accordance with the terms hereof, of the condition that such tendered Company Common Shares represent at least 20% of the issued and outstanding Company Common Shares and the other conditions and requirements that are set forth in Exhibit A, 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 validly tendered and not validly withdrawn pursuant to the 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 Common Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid to the sellers in cash, without interest, on the terms and subject to the conditions set forth in Annex A 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 condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")Conditions. 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 not withdrawn pursuant to the Offer. The Purchaser Offeror expressly reserves the right (in its sole discretion) to waive, in whole or in part, any Offer Condition or 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, that unless previously approved in writing by the Company in writingCompany, no Offeror shall not (i) reduce the Offer Price or change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces (ii) change or modify the maximum number of Shares to be purchased in the OfferOffer Cap, which imposes conditions (iii) add to the Offer in addition to those Conditions, (iv) waive, modify or change the Offer Conditions set forth in Annex A heretoparagraphs (a), which broadens or (e) of Exhibit A, (v) waive, modify or change any other Offer Condition in any manner adverse to any shareholders of the scope of such conditionsCompany, 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, (vi) except as hereinafter set forth otherwise provided in this Subsection 1.01(a)Section 1.02, extends extend or otherwise change the period expiration date of the Offer beyond 45 days after the date of commencement or (vii) otherwise amend, modify or supplement any of the Offer, or which otherwise amends the other terms of the Offer (including in any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent 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 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 (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”).
(e) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with its terms, Offeror shall (i) extend the Offer ifon one or more occasions, at 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 date of the Offer, Expiration Time any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied until such time as such conditions are 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 a the minimum period required by applicable Law, any interpretation or position of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with 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 beyond 45 calendar days from the date of its commencement (the “Outside Date”) 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 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 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 Offer Conditions as of the Expiration Time, 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 payment of Company Common 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.” At the Offer Closing each of the Offeror and the Company shall deliver to the other party a duly executed counterpart to the A&R Shareholders’ Agreement.
(g) 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 commencement of the Offer, Offeror shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). The Offer Documents Company shall comply as promptly furnish to form Offeror in writing 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 on 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 concerning the Company in writing specifically and its Subsidiaries that may be required by applicable Laws or reasonably requested by Offeror for inclusion in the Offer Documents. Each Offeror shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the shareholders of the ParentCompany, in each case as and to the Purchaser extent required by the Exchange Act. Offeror, on the one hand, and the Company agrees Company, on the other hand, shall promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser further agrees to respect or as otherwise required by applicable Law. Offeror shall take all steps necessary to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and 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 Parent 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 Purchaser agree 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 in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the on such Offer Documents or response, and all amendments Offeror shall give reasonable and supplements thereto prior good faith consideration to their filing with any such comments (it being understood that the SEC or dissemination to the stockholders of the CompanyCompany and its counsel shall provide any comments thereon 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 (i) this Agreement shall not have been terminated in accordance with Article IX and VIII hereof, (ii) none of the events or conditions set forth in Section II of Annex A I hereto shall have occurred and be existingexisting and (iii) the Company shall have complied with its obligations under Section 1.2 hereof, thenPurchaser shall, not later than the first business day after execution of this Agreement, the and Parent shall issue a public announcement cause Purchaser, to commence (within the meaning of Rule 14d-2 under the execution of this Agreement, and not later than Exchange Act) the fifth business day Offer as promptly as reasonably practicable after the date hereof, but no later than five (5) Business Days thereafter (or such other later date as the parties may mutually agree in writing). In the Offer, each Share accepted by the Purchaser in accordance with the terms of the public announcement of Offer shall be exchanged for the execution of this Agreement, right to receive from the Purchaser shallthe Offer Price, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashwithout interest. The obligation of Purchaser shall to, and of Parent to cause Purchaser to, accept for payment and pay for all any Shares which have been validly tendered in the Offer and not withdrawn pursuant shall be subject to the Offer at satisfaction or earlier waiver of all the earliest time following expiration conditions of the Offer that all set forth in Annex I, including the Minimum Tender Condition, and to the terms and conditions of this Agreement. The conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by I are for the Purchaser. The obligation sole benefit of the Parent and Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number each of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered Parent and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser 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 price per Share payable in 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 or any of its Subsidiaries will be tendered in pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Purchaser shall (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, (iii) amend or waive satisfaction of the Minimum Tender Condition (as defined in Annex I), (iv) impose conditions to the Offer in addition to the conditions to the Offer set forth in Annex I or (v) amend the conditions to the Offer set forth in Annex I in any manner that is adverse to the holders of the Shares.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) having such terms and conditions as set forth in Annex I hereto. As promptly soon as reasonably practicable following execution on the date the Offer is commenced (within the meaning of this AgreementRule 14d-2 under the Exchange Act), the Parent and the Purchaser shall file or cause to be filed with the Securities and Exchange Commission (the "“SEC"”) a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments, exhibits and supplements thereto, the “Schedule TO”) with respect to the OfferOffer that will comply in all material respects with the provisions of all applicable federal securities laws, which shall and will contain (including as an offer exhibit) or incorporate by reference the Offer to purchase Purchase and forms of the related letter of transmittal and summary advertisement advertisement, to the extent required (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madedocuments, together with any supplements supplements, exhibits or amendments thereto, and any other schedules, forms and ancillary Offer documents and instruments filed in connection with the "Offer and related transactions are referred to collectively herein as the “Offer Documents"”). The Parent and Purchaser shall disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. The Company shall comply as promptly furnish to form Parent and Purchaser all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Purchaser for inclusion in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Schedule TO and the rules Offer Documents. Parent and regulations promulgated thereunder andPurchaser hereby further agree that the Schedule TO and the Offer Documents, on the date when filed with the SEC and on the date first published, sent or given to the holders of SharesCompany’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 are were made, not misleading; provided, except however, that no representation or warranty is made by the Parent or the Purchaser with respect to information supplied by or on behalf of the Company in writing specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company hereby agrees that the information provided by or on behalf of the Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents, when 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. Each of the Parent, the Purchaser and the Company agrees shall promptly to correct any information supplied provided by or on behalf of it specifically for inclusion 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 each of the . Parent and the Purchaser further agrees to shall take all steps necessary to cause the Schedule TO and the Offer Documents Documents, as so amended, to reflect such corrected information, to be filed with the SEC and the other Offer Documents, as amended to reflect such corrected information, 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 Parent and , provided that, to the Purchaser agree to provide extent any information provided by or on behalf of the Company and its counsel shall have become false or misleading in writing with any comments the Parentmaterial respect, the Purchaser or their counsel may receive from the SEC or its Staff with respect Company shall bear all costs, fees and expenses related to the correction and filing of the revised Schedule TO and Offer Documents promptly after with the receipt of such commentsSEC. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on any Offer Documents before they are filed with the SEC, and Parent and 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 the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, 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 as promptly as practicable 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 amendments reasonable additions, deletions or changes suggested thereto by the Company and supplements thereto its counsel.
(d) Subject to the terms and conditions of this Agreement and the Offer, the Offer to Purchase shall provide that the Offer will expire at midnight, New York time, on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1 promulgated under the Exchange Act) after the date the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Purchaser agrees that after commencing the Offer, it shall not terminate or withdraw the Offer or, except as set forth in this Section 1.1(d), extend the expiration date of the Offer unless, 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 or, in the case of termination, such termination is in connection with the termination of this Agreement pursuant to Article VIII hereof. 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 shall cause Purchaser to extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Purchaser becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer if such conditions may, in the reasonable judgment of Parent, be satisfied prior to their filing with the applicable termination date set forth in Section 8.2(a). Parent may cause Purchaser to (i) extend the expiration date of the Offer (as it may be extended) for any period required by any rule, regulation or interpretation of the SEC or dissemination the staff thereof applicable to the stockholders Offer and (ii) extend the expiration date of the CompanyOffer (as it may be extended) for up to two periods, each for up to five (5) Business Days, if on such expiration date the conditions for the Offer described in Annex I hereto, other than the Minimum Tender Condition, shall have been satisfied or earlier waived. Notwithstanding the foregoing, Purchaser (or Parent on its behalf) may, in its sole discretion provide a “subsequent offering period” for the Offer for a number of days in accordance with Rule 14d-11 promulgated under the Exchange Act (each such period, a “Subsequent Offering Period”).
(e) Subject to the terms and conditions set forth in this Agreement and the Offer, Purchaser shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after the applicable expiration date of the Offer (as it may be extended) and in any event in compliance with Rule 14e-1(c) promulgated under the Exchange Act. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer or during any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction only for any applicable federal back-up withholding or other Taxes payable by such holder. To the extent any such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. Parent shall provide, or cause to be provided to Purchaser, immediately preceding the applicable expiration time of the Offer (as it may be extended), the funds necessary to pay for any Shares of Common Stock that Purchaser accepts or is obligated to accept for payment pursuant to the Offer, and shall cause Purchaser to perform on a timely basis all of Purchaser’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
The Offer. (a) Provided that this Agreement The Company shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 Purchaseras promptly as practicable. The obligation of the Purchaser Company to commence the Offer and to accept for payment, purchase and to pay for Shares any shares of WorldPort Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any satisfaction of the conditions set forth in Annex A) in a manner that is materially adverse to holders of SharesEXHIBIT D (the "OFFER CONDITIONS"). Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly soon as reasonably practicable following execution of this Agreement, the Parent and the Purchaser Company shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement and a Rule 13e-3 Transaction Statement on Schedule 14D-1 TO, including all exhibits thereto (together with all amendments and supplements thereto, the "SCHEDULE TO") with respect to the Offer, which the Merger and the other transactions contemplated hereby. The Schedule TO shall contain or incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and summary advertisement any related documents (such the Schedule 14D-1 and the documents therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all supplements or amendments thereto, collectively, the "Offer DocumentsOFFER DOCUMENTS"). The Heico and JOHCM shall each use their commercially reasonable efforts to ensure that (i) the Offer Documents shall comply as to 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, (ii) on the date filed with the SEC and on the date first published, sent or given to WorldPort's stockholders, the holders of Shares, 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 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, except then the party 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, the Purchaser and the Company agrees promptly to correct discovers any information supplied by it specifically for inclusion in the Offer Documents if and to the extent that such misleading information shall have become false promptly notify the other parties hereto and an appropriate amendment or misleading in any material respect, and each of supplement describing the Parent and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to information shall be promptly filed with the SEC and to be disseminated to holders of Sharesand, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parentlaw or regulation, the Purchaser or their counsel may receive from the SEC or its Staff with respect disseminated to the Offer Documents promptly after the receipt shareholders 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 CompanyWorldPort.
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 this Agreement shall not have been terminated As promptly as practicable (but in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not no event later than the first five business day days 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 execution hereof), Purchaser shall commence (within the meaning of this Agreement, Rule 14d-2 under the Purchaser shall, subject to the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between ) the Offer to purchase for cash all of the issued and outstanding shares of Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Common Stock at a price of $10.50 17.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer 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 the Purchaser to accept for paymentPrice"), purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date 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. Solely The obligations of Purchaser to commence the Offer and to accept for purposes payment and to pay for any Shares validly tendered on or prior to the expiration of determining whether the Offer and not withdrawn shall be subject only to the Minimum Condition has been satisfiedand the other conditions set forth in Annex A hereto. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement, any Shares owned by Parent or the Minimum Condition and the other conditions set forth in Annex A hereto. Without the written consent of the Company, Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in decrease the Offer or to make any other changes in Price, decrease the terms and conditions number of the Offer; PROVIDEDShares sought, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces or amend any other condition of the maximum number Offer in any manner adverse to the 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, HOWEVER, that if prior to the initial scheduled expiration date of the Offer 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 (as it may be purchased in the Offer, which imposes extended) all conditions to the Offer in addition to those set forth in Annex A heretoshall not have been satisfied or waived, 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 period of the Offer beyond 45 days after the date of commencement of the Offermay be extended from time to time until February 1, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, 1996 without the consent of the Company. In addition, (i) extend the Offer ifPrice may be increased and the Offer may be extended to the extent required by law in connection with such increase, at in each case without the scheduled expiration date consent of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares Company. Purchaser shall not be satisfied until such time as such conditions are satisfied, or (ii) extend terminate the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) upon termination of this sentence 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 Agreement 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 Offerterms.
(b) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which shall contain an offer the "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer Documents")) with respect to the Offer. The Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable Federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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 Parent and Purchaser further agrees to take all steps necessary to cause the ParentOffer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the Purchaser 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 supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 before it is filed with the SEC. In addition, Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from time to time 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 2 contracts
Sources: Merger Agreement (Psicor Inc), Merger Agreement (Baxter International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX IX, and none of the events or conditions set forth in Annex A that no event shall have occurred and be existing, then, not later than continuing that would result 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration failure to be paid in the Offer, which reduces the maximum number satisfied of Shares to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer ifno earlier than September 22, at the scheduled 2010.
(b) The initial expiration date of the OfferOffer 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 initial “Expiration Date” and any expiration time and date established pursuant to an extension of the Offer as so extended, also an “Expiration Date”).
(c) The obligations of Purchaser to commence the Offer and accept for payment, and pay for, any of Public Shares tendered pursuant to the Offer are subject only to (i) the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or set forth in Annex A and (ii) extend the Offer for a period of not more than 15 business days beyond non-waivable condition that pursuant to the latest expiration date that would otherwise be permitted under clause (i) of this sentence ifOffer, on prior to the date of such extensionExpiration Date, more than two-thirds but less than 90 percent of Shares there shall have been validly tendered and not properly withdrawn pursuant 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. It is agreed that the conditions Offer 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 Purchaser; provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under 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 giving rise to time, in its sole discretionsuch condition. The failure by the Parent or the 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 which that may be asserted at any time and from time to time. Any determination by .
(d) Purchaser expressly reserves the Parent right (i) to increase the Offer Price and (ii) to waive any condition to the Offer or modify the Purchaser with respect to any terms of the foregoing conditions (includingOffer, except that the Minimum Condition may not be waived and that, without limitationthe consent of the Company, Purchaser shall not (A) reduce the satisfaction number of such conditionsPublic Shares subject to the Offer, (B) shall be final and binding on except as provided in Section 4.4, reduce the parties. The Company agrees that no Offer Price, (C) add to the conditions set forth in Annex A or modify any condition set forth in Annex A in any manner adverse to the holders of Public Shares held by or (D) change the Company will be tendered form of consideration payable in the Offer.
(be) As promptly as reasonably practicable following execution Purchaser may in its discretion (i) extend the Offer for one or more consecutive increments of this Agreementnot more than ten business days each, if at any otherwise scheduled Expiration Date of the Parent and Offer any of the Purchaser shall file with conditions to Purchaser’s obligation to purchase Public Shares in the Offer are not satisfied or waived, (ii) extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) a Tender Offer Statement on Schedule 14D-1 with respect or the staff thereof applicable to the Offer, which shall contain an offer to purchase and related letter or (iii) make available a “subsequent offering period” in accordance with Rule 14d-11 of transmittal and summary advertisement the Exchange Act.
(such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents f) Purchaser shall comply as to form in all material respects with the requirements obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the generality of the Securities Exchange Act of 1934foregoing, as amended (the "Exchange Act")Purchaser shall accept for payment, and the rules pay for, all Public Shares validly tendered and regulations promulgated thereunder and, on the date filed with the SEC and on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect withdrawn pursuant to the Offer Documents promptly after following the receipt acceptance of such comments. The Company Public Shares for payment pursuant to the terms and its counsel shall be given a reasonable opportunity subject to review and comment upon the conditions of the Offer Documents and all amendments and supplements thereto prior this Agreement. This paragraph shall not be deemed to their filing with impair, limit or otherwise restrict in any manner the SEC or dissemination right of Purchaser to the stockholders of the Companyterminate this Agreement pursuant to Article 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 this Agreement shall not have --------- been terminated in accordance with Article IX and none of the events or conditions set forth Section 7.1, as promptly as practicable (but in Annex A shall have occurred and be existing, then, not no event later than the first five business day days 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 execution of this Agreementhereof), the Purchaser shall, subject to the provisions of this Agreementand Parent shall cause Purchaser to, commence a tender (within the meaning of Rule 14d-2 under the Securities Exchange Act of 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 Company Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Stock at a price of $10.50 17.85 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer 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 the Purchaser to accept for paymentPrice"), purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number . The Company shall not tender Shares held by it or by any of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn its subsidiaries pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by 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 Company 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 the conditions set forth in writing, no change may Annex A hereto.
(b) The Offer shall be made which decreases by means of an offer to purchase (the price per Share payable "Offer to Purchase") containing the terms set forth in this Agreement and the Offer, which changes conditions set forth in Annex A hereto. The Purchaser shall not decrease the form of consideration to be paid in Offer Price or decrease the Offer, which reduces the maximum number of Shares sought, amend the conditions to be purchased the Offer set forth in the Offer, which imposes Annex A or impose conditions to the Offer in addition to those set forth in Annex A heretoA, which broadens without the scope prior written consent of the Company (such conditionsconsent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, which increases the minimum number of Shares which must Purchaser shall be tendered as a condition entitled to and shall, and Parent agrees to cause the acceptance for payment and payment for shares Purchaser to, extend the Offer at any time up to 40 days in the Offeraggregate, which waives in one or more periods of not more than 10 business days, if at 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 period of the Offer beyond 45 days after the initial expiration date of commencement of the Offer, or which otherwise amends the terms of 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 (including i) each such condition is reasonably capable of being satisfied and (ii) the Company is in material compliance with all of its covenants under this Agreement after the Purchaser shall have given the Company five business days prior written notice of any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Sharessuch non-compliance. Notwithstanding In addition, without limiting the foregoing, 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 condition to the Offer is not satisfied or waived and (B) if, at on the scheduled 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, extend the Offer on one occasion for up to 10 business days notwithstanding that all the conditions to the Offer have been satisfied so long as Purchaser irrevocably waives the satisfaction of any of the conditions to the Purchaser's obligation to purchase Shares shall Offer (other than in the case of paragraph (a) of Annex 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 until during any such time as such conditions are satisfiedextension of the Offer. In addition, or (ii) extend the Offer for a period 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 not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause Company.
(ic) of this sentence if, As soon as practicable on the date of such extensionthe Offer is commenced, 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which the "Schedule 14D-1"). The Schedule 14D-1 shall contain an offer include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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, Parent and the 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 Company agrees Purchaser, on the one hand, and the Company, on the other hand, shall promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given an opportunity to review and comment upon the 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 the Purchaser agree to shall provide the Company and its counsel in writing with any comments the that Parent, 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 comments 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 and its counsel shall be given a reasonable opportunity Common Stock that Purchaser becomes obligated to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination purchase pursuant to the stockholders of the CompanyOffer.
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 this Agreement shall not have been terminated in accordance with Article IX Section 7.1, as promptly as practicable (and none in any event within ten (10) Business Days from the date hereof, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all Shares at the Offer Price, subject to:
(i) there being validly tendered in the Offer and not withdrawn prior to any then scheduled Expiration Date (as defined below) that number of Shares which, together with the Shares then beneficially owned by Parent or Purchaser (if any), represents at least sixty-six and two-thirds percent (66 2/3%) of: (x) all Shares then outstanding, plus (y) all Shares issuable upon the exercise, conversion or exchange of any Company Stock Options or Company Warrants then outstanding that are vested and exercisable, convertible or exchangeable as of any then scheduled Expiration Date or that would be vested and exercisable, convertible or exchangeable (including after giving effect to the acceleration of any vesting or exercisability, convertibility or exchangeability that may occur as a result of the events Offer) at any time within sixty (60) days following the then scheduled Expiration Date assuming that the holder of such Company Stock Options satisfies the vesting or exercisability, convertibility or exchangeability conditions applicable thereto during such time period (the “Minimum Condition”); and
(ii) the satisfaction, or waiver by Parent or Purchaser, of the other conditions and requirements set forth in Annex A I.
(b) Subject to Section 1.1(a), Purchaser shall have occurred (and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of cause Purchaser to) consummate the execution of this Agreement, Offer in accordance with its terms and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 Purchaseras promptly as practicable. The obligation Offer Price payable in respect of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 each Share validly tendered and not withdrawn pursuant to the Offer. Offer shall be paid net to the seller in cash subject to withholding as provided in Section 2.2(e).
(c) 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 and requirements set forth in Annex I. Parent and Purchaser expressly reserves reserve 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 Offeroffer; PROVIDEDprovided, HOWEVERhowever, that, that unless otherwise provided by this Agreement or as previously approved by the Company in writing, no Purchaser shall not (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces (iii) reduce the maximum number of Shares to be purchased in the Offer, which imposes (iv) impose conditions to the Offer that are different from, or in addition to those set forth in Annex A heretoto, 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the CompanyI, (iv) extend amend or waive the Offer ifMinimum Condition, at the scheduled expiration date of the Offer, (vi) amend any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 I or (vii) extend the sole benefit expiration of the Parent and Offer in a manner, other than as required by this Agreement, without the Purchaser and may be asserted by the Parent or the Purchaser regardless prior written consent 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 OfferCompany.
(bd) As promptly as reasonably practicable following execution Unless extended pursuant to and in accordance with the terms of this Agreement, the Parent and Offer shall expire at midnight (New York City time) on the Purchaser shall file date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Securities and Exchange Commission Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the "SEC"“Initial Expiration Date”) a Tender Offer Statement on Schedule 14D-1 or, in the event the Initial Expiration Date has been extended pursuant to, and in accordance with respect to this Agreement, the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant date to which the Offer will be madehas been so extended (the Initial Expiration Date, together or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with any supplements or amendments theretothis Agreement, is referred to as the "Offer Documents"“Expiration Date”). .
(e) The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity extended from time 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.time as follows:
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
The Offer. (a) Provided that Subject to this Agreement shall not have having been terminated in accordance with Article IX the provisions of Section 8.1 hereof, Purchaser shall, and none of the events or conditions set forth Parent shall cause Purchaser to, as promptly as practicable, but in Annex A shall have occurred and be existing, then, not no event later than the first five 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 days from the date of the public announcement of the execution 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, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "OfferOFFER") for all shares of common stock, $1.00 par value, of the outstanding shares of Common Stock, together with Company (including the associated common stock purchase rights issued pursuant referred to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent 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 of $10.50 29.00 per Share, net to the seller in cash. The Subject to this Agreement not having been terminated in accordance with the provisions of Section 8.1 hereof and to the Conditions, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A heretoOffer, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration 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 in no event shall be obligated to extend the period of time the Offer is open beyond August 15, 1997 or, if Purchaser has elected, in its 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"). 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in amend the terms and conditions of the Offer; PROVIDEDprovided, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, no amendment may be made which (i) extend decreases the Offer if, at price per Share or changes the scheduled expiration date form of consideration payable in the Offer, any (ii) decreases the number of the Shares sought, or (iii) imposes additional conditions to the Purchaser's obligation Offer or amends any other term of the Offer in any manner adverse to purchase the holders of Shares shall (it being understood that extensions of the Offer as contemplated by this Section 1.1(a) are not be satisfied until such time as such conditions are satisfiedadverse to the holders of Shares). Notwithstanding the foregoing, or (ii) Purchaser shall, in its judgment, have right to extend and re-extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence ifOffer, 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, but in its sole discretion. The failure by no event beyond November 15, 1997, if it believes that such extension is advisable in order to facilitate the Parent or the Purchaser at any time to exercise any orderly transition 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 business of the foregoing conditions (including, without limitation, Company and preserve and maintain 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 OfferCompany's business relationships.
(b) As promptly The Company will not, nor will it permit any of its Subsidiaries (as reasonably practicable following execution defined below) to, tender into the Offer any Shares beneficially owned by it. For purposes of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the OfferSUBSIDIARY" means, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form any Person (as defined below), any corporation, limited liability company, partnership or joint venture, whether now existing or hereafter organized or acquired: (i) in all material respects with the requirements case of a corporation, of which at least a majority of the Securities Exchange Act outstanding shares of 1934, as amended 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 "Exchange Act"), and happening of any contingency) is at the rules and regulations promulgated thereunder and, on time directly or indirectly owned or controlled by such Person and/or one or more of its Subsidiaries or (ii) in the date filed with the SEC and on the date first published, sent or given to the holders of Shares, shall not contain any untrue statement case of a material fact limited liability company, partnership or omit to state any material fact required to be stated therein or necessary in order to make the statements thereinjoint venture, in light 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 circumstances under which they partnership or other ownership interests are madeat the time owned by such Person and/or one or more of its Subsidiaries. For purposes of this Agreement, not misleading"PERSON" means any individual, except that no representation is made by the Parent corporation, company, voluntary association, limited liability company, partnership, joint venture, trust, unincorporated organization or the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 Companyother entity.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BBN Corp), Merger Agreement (Gte Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A nothing shall have occurred and be existingcontinuing that, thenhad the Offer been commenced, not later than would give rise to a right to terminate 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued Offer pursuant to the Rights Agreement dated as any of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A heretoI, including as promptly as practicable after the date hereof and in any event within ten (10) Business Days after the date hereof, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer to purchase any and all of the outstanding Shares at the Offer Price. The Offer shall be subject only (1) to the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis there shall have been be validly tendered and not withdrawn in accordance with the terms of the Offer, prior to the expiration date Expiration Date (as defined below), a number of Shares that, together with the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares then owned by Parent or Purchaser shall be deemed to have been validly tendered and/or Merger Subsidiary, represents at least a majority of the total number of Shares outstanding on a fully diluted basis, calculated in accordance with Section 3.5(b) (the “Minimum Condition”), and not withdrawn pursuant (2) to the Offer. The Purchaser other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to increase waive any of the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and of or conditions of to the Offer; PROVIDEDprovided, HOWEVERthat without the prior written consent of the Company, that, unless previously approved by (i) the Company in writing, Minimum Condition may not be waived and (ii) no change may be made which decreases the price per Share payable in the Offer, which that changes the form of consideration to be paid paid, decreases the Offer Price or the number of Shares sought 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 A heretoI or modifies the conditions set forth in Annex I, or amends any other term of the Offer in any manner adverse to the holders of Shares in the reasonable judgment of the Company. The initial expiration date of the Offer shall be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (such date, or such subsequent date to which broadens the scope expiration of such conditionsthe Offer is extended pursuant to and in accordance with the terms of this Agreement, which increases the “Expiration Date”). Notwithstanding the foregoing, (x) Merger Subsidiary shall 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 or any period required by Applicable Law and (y) if any condition to the Offer is not satisfied or waived on any scheduled Expiration Date, Merger Subsidiary shall, subject to the rights of the parties in Article 11, extend the Offer for one or more periods (each in the reasonable judgment of Merger Subsidiary for the minimum number period of Shares which must time reasonably expected by Merger Subsidiary to be tendered as a condition required to satisfy such conditions but in any event not in excess of twenty (20) business days each) until such conditions are satisfied or waived; provided, in each case, that Merger Subsidiary shall not be required to extend the Offer beyond the termination of this Agreement. If upon the acceptance for payment of, and payment for shares in the Offerfor, which waives the Minimum Condition if such waiver would result in less than a majority of all Shares being accepted for payment or paid for validly tendered and not withdrawn pursuant to the Offer, whichMerger Subsidiary has not acquired the Requisite Short Form Merger Shares, except as hereinafter set forth Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than three (3) nor more than ten (10) business days immediately following the Expiration Date. Merger Subsidiary shall not terminate or withdraw the Offer prior to its Expiration Date, unless this Subsection 1.01(aAgreement is terminated in accordance with Article 11 hereof. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to (including by providing or causing to be provided to Merger Subsidiary on a timely basis the necessary funds), extends accept for payment and pay for, as promptly as practicable after the period expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer beyond 45 days after (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”) and (ii) validly tendered in the Subsequent Offering Period.
(b) On the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser Merger Subsidiary shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement and other appropriate ancillary Offer documents (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and shall cause the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given Offer Documents to the be disseminated to all holders of Shares, . The Company shall not contain any untrue statement promptly upon request of a material fact or omit to state any material fact Parent and Merger Subsidiary provide Parent in writing with all information concerning the Company that is required to be stated therein included in the Schedule TO 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, the Purchaser Merger Subsidiary and the Company agrees promptly to correct any information supplied provided by it specifically for inclusion use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become (or shall become known to be) false or misleading in any material respect, and each of the . Parent and the Purchaser further agrees to take all steps necessary to Merger Subsidiary shall cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case case, as and to the extent required by applicable Federal U.S. federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and all amendments Parent and supplements thereto prior Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their filing with counsel may receive from time to time from the SEC or dissemination its staff with respect to the stockholders Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the Companyresponse 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, it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable).
Appears in 2 contracts
Sources: Merger Agreement (Ixia), Merger Agreement (Catapult Communications Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII hereof and none of the events or conditions set forth in Annex A I hereto (the "Tender Offer Conditions") shall have occurred and be existingoccurred, 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 as promptly as practicable but in no event later than the fifth business day after from the date of the public announcement of the execution of this Agreement, Parent shall cause the Purchaser shallto, subject to and the provisions Purchaser shall commence (within the meaning of this Agreement, commence a tender offer (Rule 14d-2 under the "Offer") for all Securities Exchange Act of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (including the "Company Rights Agreement"), between the Company rules and First Interstate Bank of California, as Rights Agent (collectivelyregulations promulgated thereunder, the "SharesExchange Act")) the Offer to purchase all outstanding Shares at the Offer Price and shall file all necessary documents with the Securities and Exchange Commission (the "SEC") at a price of $10.50 per Share, net in connection with the Offer (together with any amendments or supplements to the seller in cash"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 which have been 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 earliest time following initial expiration of the Offer, or any extension thereof, any condition to the Offer that all conditions 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 A hereto shall have been I is not satisfied or waived by the Purchaser. The obligation of waived; provided, however, that the Purchaser shall not be required to accept for payment, purchase and pay for Shares tendered pursuant to extend the Offer shall be subject to the conditions set forth as provided in Annex A heretothis sentence unless, including the in Parent's reasonable judgment, (i) each such condition that a number is reasonably capable of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered being satisfied and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by ii) the Company is in writingmaterial compliance with all of its covenants under this Agreement. In addition, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding without limiting the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at on the scheduled 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, extend the Offer for up to 15 business days in the aggregate notwithstanding that all the conditions to the Offer have been satisfied so long as Purchaser irrevocably waives the satisfaction of any of the conditions to the Purchaser's obligation to purchase Shares shall Offer (other than those set forth in paragraphs (a), (b) or (d) of Annex I) that subsequently may not be satisfied until during any such time as such conditions are satisfied, or (ii) extend the Offer for a period extension of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 In addition, the conditions set forth Offer Price may be increased and the Offer may be extended to the extent required by law in Annex A are for connection with such increase in each case without the sole benefit consent of the Company.
(c) 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 represent that no Shares held by the Company will be tendered in the Offer.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer Documents will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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. The Company and its counsel shall be given an opportunity to review and comment on the Offer Documents and any material amendments thereto prior to the filing thereof with the SEC. Each of the Parent, the Purchaser Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to will provide the Company and its counsel in writing with a copy of any written comments the Parent, the or telephonic notification of any oral comments Parent or Purchaser or their counsel may receive received from the SEC or its Staff staff with respect to the Offer Documents promptly after receipt thereof and will provide the receipt of such comments. The Company and its counsel shall be given with a reasonable opportunity to review copy of any written responses and comment upon the Offer Documents and all amendments and supplements thereto prior to telephonic notification of any oral responses of Parent, Purchaser or their filing with the SEC or dissemination to the stockholders of the Companycounsel.
Appears in 2 contracts
Sources: Merger Agreement (United States Filter Corp), Merger Agreement (United States Filter Corp)
The Offer. (a) Provided that this Agreement shall not have previously been validly terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existingits terms, 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 as promptly as practicable following the date of the public announcement of the execution of this AgreementAgreement (but in no event later than October 4, the 2010), Parent shall cause Purchaser to, and Purchaser shall, subject to commence (within the provisions meaning of this Agreement, commence a tender offer (Rule 14d-2 promulgated under the "Offer"Exchange Act) the Offer for all (or, solely in the circumstances described in Section 2.1(e)(ii), the Reduced Purchase Amount) of the outstanding shares of Common Stock, together with the associated rights issued pursuant Company Shares for a price per Company Share equal to the Rights Agreement dated Per Share Amount (as of December 5, 1992, adjusted as amended (the "Company Rights Agreement"provided in Section 2.1(h), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash). The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number made by means of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase (the “Offer to Purchase”) and form of the related letter of transmittal (the Schedule TO, the Offer to Purchase and summary advertisement (such Schedule 14D-1 and the any other ancillary documents therein pursuant to which the Offer will be made, together with any all exhibits, supplements or and amendments thereto, being referred to herein collectively as the "“Offer Documents"”) 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 timely basis the funds necessary to pay for any Company Shares that Purchaser becomes obligated to purchaser pursuant to the Offer. 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 the Offer.
(c) Each of Parent and 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 Condition or amend, modify or supplement any of the Tender Offer Conditions or terms of the Offer. Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor Purchaser shall, 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) 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 the Expiration Date of the Offer;
(v) change the form of consideration payable in the Offer;
(vi) amend, modify or supplement any of the Tender Offer Conditions (other than to waive such Tender Offer Conditions); or
(vii) amend, modify or supplement terms of the Offer in a manner that adversely affects the holders of 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 (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the Offer Commencement Date (the “Initial Expiration Date”). Notwithstanding the foregoing, unless the Agreement is terminated in accordance with the terms hereof, (i) Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or the NASDAQ Global Market (“Nasdaq”) that is applicable to the Offer, and (ii) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (together with the Initial Expiration Date, the “Expiration Date”), any Tender Offer Condition is not satisfied or waived, Purchaser shall 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) in order to permit the satisfaction of all of the Tender Offer Conditions; provided, however, that 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 Agreement. Nothing in this Section 2.1(d) shall affect any termination rights in Section 9.1.
(e) 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 promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference the Offer Documents. Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Purchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply as to form in all material respects with the applicable 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 on 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 Documentsfederal securities laws. Each of the Parent, the Purchaser and the Company agrees promptly agree to correct promptly any information supplied provided by it specifically any of them for inclusion use 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 the Purchaser further agrees agree to take all steps necessary use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC and to be disseminated to holders of SharesSEC, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parentother Offer Documents, 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. 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.as so correcte
Appears in 2 contracts
Sources: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
The Offer. (a) Provided that this Agreement shall has not have been terminated in accordance with Article IX and none of the events or conditions set forth Section 8.1, as promptly as reasonably practicable (but in Annex A shall have occurred and be existing, then, not no event later than the first ten (10) 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 days) after the date hereof, Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer"Exchange Act) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration Offer Price. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Offer that all conditions to Conditions, Purchaser shall, and Parent shall cause Purchaser to, promptly after the Offer Expiration Time (and in any event within one (1) business day (calculated as set forth in Annex A hereto shall have been satisfied or waived by Rule 14d-1(g)(3) under the Purchaser. The obligation of the Purchaser to Exchange Act)), accept for payment, purchase and pay for payment all such Shares validly tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior (the date and time of the first acceptance for payment, the “Acceptance Time”) and promptly thereafter pay for such Shares.
(b) The Offer shall initially be scheduled to expire at midnight (Eastern time) on the expiration date that is twenty (20) business days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the "Minimum Condition"Exchange Act) (the latest time as the Offer may expire, as it may be extended pursuant to this Section 1.1, shall be referred to as the “Expiration Time”). Solely for purposes of determining whether the Minimum Condition has been satisfiedIf on or prior to any then scheduled Expiration Time, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any all of the conditions set forth in Annex AI (collectively, the “Offer Conditions”) 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 successive periods of up to ten (10) business days each (the length of such period to be determined in good faith by Parent and the Company) until the earlier of (x) the date on which all of the Offer Conditions are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Section 8.1. The Offer may not be terminated or withdrawn prior to the Expiration Time, unless this Agreement is terminated in accordance with Section 8.1. In the event this Agreement is terminated pursuant to Section 8.1, Parent shall cause Purchaser to promptly (and in any event within one (1) business day of such termination) irrevocably and unconditionally terminate the Offer.
(c) Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, neither Parent nor Purchaser shall:
(i) change the form of consideration payable in the Offer, decrease the Offer Price or decrease the number of Shares subject to or sought pursuant to the Offer;
(ii) extend the Expiration Time, except as required by this Agreement or Applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or its staff);
(iii) waive or amend the Minimum Condition;
(iv) impose any condition to the Offer not set forth in Annex I; or
(v) otherwise amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement or in the Offer Documents in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Company’s shareholders.
(d) Purchaser may, without the consent of the Company, (i) extend elect to provide a subsequent offering period for the Offer if, at in accordance with Rule 14d-11 of the scheduled expiration Exchange Act following its acceptance for payment of Shares in the Offer (a “Subsequent Offering Period”).
(e) On the date of commencement of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares Parent and Purchaser shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 file or cause 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file filed with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which shall contain an or incorporate by reference the offer to purchase and forms of the related letter of transmittal and transmittal, summary advertisement (such Schedule 14D-1 and the other ancillary documents therein and instruments required thereby pursuant to which the Offer will be made, together made (collectively with any supplements or supplements, amendments and exhibits thereto, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to the Company’s shareholders as and to the extent required by the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents shall comply as prior to form in all material respects their filing with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")SEC, and the rules Parent and regulations promulgated thereunder and, on the date filed with the SEC Purchaser shall give reasonable and on the date first published, sent or given good faith consideration 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 comments made by the Company or its counsel. Parent and Purchaser agree to provide the Company with (i) any comments or other communications, whether written or oral, that may be received from the Purchaser SEC or its staff with respect to information supplied by the Company in writing specifically for inclusion in the Offer DocumentsDocuments 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). Each of the Parent, the Purchaser and the Company agrees shall promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to the holders of Shares, in each case as and to the extent required by Applicable Law or any applicable Federal securities lawsrules or regulations of NASDAQ. The Company shall promptly furnish to Parent and the Purchaser agree to provide all information concerning the Company and its counsel required by the Exchange Act to be set forth in writing with any comments the ParentOffer Documents. Subject to an Adverse Change Recommendation being made by the Company pursuant to Section 5.4 prior to the time the Offer Documents are disseminated to the Company’s shareholders, the Company hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents; provided, in the event an Adverse Change Recommendation is made by the Company pursuant to Section 5.4 following the time the Offer Documents are disseminated to the Company’s shareholders, each of Parent and Purchaser shall take all steps necessary to amend or their counsel may receive from supplement the Offer Documents to correct such information and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and disseminated to the holders of Shares, as applicable.
(f) Parent shall provide or its Staff with respect cause to be provided to Purchaser on a timely basis the funds necessary to pay for any Shares that Purchaser becomes obligated to purchase pursuant to the Offer Documents promptly after the receipt and shall cause Purchaser to fulfill its obligations under this Agreement. Parent shall, and shall ensure that all of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment upon Affiliates, either (i) tender Shares held by them, if any, into the Offer Documents and all amendments and supplements thereto or (ii) transfer such Shares to Purchaser prior to their filing with the SEC or dissemination to the stockholders of the CompanyAcceptance Time.
Appears in 2 contracts
Sources: Merger Agreement (CalAmp Corp.), Merger Agreement (Lojack Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VII and none subject to the conditions of the events or conditions set forth in Annex A shall have occurred and be existingthis Agreement, then, then (i) not later than the first business day Business Day after execution of this Agreement, LUKOIL Americas and the Parent Company shall issue a mutually acceptable public announcement of announcements regarding the execution of this Agreement, Agreement and not later than the fifth business day after the date of the public file such announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on under cover of Schedule 14D-1 TO and (ii) Merger Sub shall, and LUKOIL Americas shall cause Merger Sub to, as soon as practicable, but in no event later than seven Business Days from and after the date of such announcement, including the date of announcement as the first Business Day in accordance with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of 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 of Company Common Stock (other than as otherwise provided in this Agreement) at the Price Per Share. The initial expiration date of the Offer shall be the twentieth Business Day from and the rules and regulations promulgated thereunder and, on after the date filed the Offer is commenced, including the date of commencement as the first Business Day in accordance with Rule 14d-2 under the Exchange Act subject to extension as provided herein. The Offer shall be made pursuant to an Offer to Purchase and 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 SEC terms of this Agreement shall be subject only to (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 "Minimum Shares") validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition") and (y) the satisfaction of the other conditions set forth in 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 Minimum Condition without the prior written consent of the Company. Each party agrees that no shares of Company Common Stock held by it 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, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer or 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 first published, sent of the Offer or given (v) otherwise amend or add any term or condition of the Offer in any manner adverse in any material respect to the holders of Sharesshares of Company Common Stock; provided, shall not contain however, that if on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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.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 this Agreement shall not have been terminated in accordance with Article IX VII and none of the events or conditions set forth in Annex A hereto ------- shall have occurred and or be existing, thenPurchaser shall, not later than the first business day after execution of this Agreement, the and Parent shall issue a public announcement of cause Purchaser to, as promptly as practicable after the execution of this Agreement, and not date hereof (but in no event later than the fifth business day after the date of the public announcement of the execution terms of this Agreement, the Purchaser shall, subject to the provisions of this Agreement), commence a tender (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer (the "Offer") for ------------ ----- to purchase all of the outstanding shares of Company Common Stock, together with the Stock (and associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares"Rights) at a price of 38.50 United States Dollars ($10.50 38.50) per Shareshare and associated Right (the "Offer Price"), net to the seller in cash, subject to ----------- reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the Offer at the earliest time following terms and conditions set forth in this Agreement. The initial expiration date of the Offer that all conditions to shall be the twentieth business day from and after the date the Offer set forth in Annex A hereto shall have been satisfied or waived by is commenced (the Purchaser"Initial Expiration Date"). The obligation of the Purchaser to accept for payment, ----------------------- purchase and pay for Shares any shares of Company Common Stock (and associated Rights) tendered pursuant to the Offer shall be subject subject, except as provided in Section 1.1(b), only to the conditions set forth in Annex A hereto, including satisfaction of (i) the condition that a number of Shares shares of Company Common Stock representing not less than a majority fifty-one percent (51%) of the Shares total issued and outstanding shares of Company Common Stock on a fully diluted basis shall (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights or securities convertible into shares of Company Common Stock) (excluding any shares of Company Common Stock held by the Company or any of its Subsidiaries (as defined below)) on the date such shares are purchased pursuant to the Offer have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether ) and (ii) the Minimum Condition has been satisfied----------------- other conditions set forth in Annex A hereto; provided, any Shares owned by Parent or however, that Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser ------- -------- ------- expressly reserves the right to increase waive any of the conditions to the Offer (other than the Minimum Condition) and to make any change in the terms or conditions of the Offer in its sole discretion, subject to Section 1.1(b).
(b) Without the prior written consent of the Company, neither Parent nor Purchaser will (i) decrease the price per Share payable in the Offer or to make any other changes in the terms and conditions share of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share Common Stock payable in the Offer, which changes (ii) decrease the number of shares of Company Common Stock sought in the Offer, (iii) change the form of consideration to be paid payable in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes (iv) impose conditions to the Offer in addition to those set forth in Annex A heretoA, 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, (v) except as hereinafter set forth in this Subsection 1.01(a)provided below or required by any rule, extends the period regulation, ------- interpretation or position of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) --- otherwise amend or change any term or condition of the Offer in a manner materially adverse to the holders of shares of Company Common Stock. Notwithstanding anything in this Agreement to the contrary, without the consent of the Company, Purchaser shall have the right to extend the Offer beyond the Initial Expiration Date in the following events: (i) from time to time if, at the Initial Expiration Date (or extended expiration date of the Offer, if applicable), any of the conditions to the Offer (other than the Minimum Condition to which this clause does not apply) shall not have been satisfied or waived, until such conditions are satisfied or waived; (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the Staff thereof applicable to the Offer or any period required by applicable law; (iii) if all conditions to the Offer other than the Minimum Condition are satisfied or waived, but the Minimum Condition has not been satisfied, for one or more periods not to exceed ten (10) business days each (or an aggregate of thirty (30) business days for all such extensions); or (iv) if all of the condi- tions to the Offer are satisfied or waived but the number of shares of Company Common Stock validly tendered and not withdrawn is less than ninety percent (90%) of the then outstanding number of shares of Company Common Stock on a diluted basis, for an aggregate period not to exceed twenty (20) business days (for all such extensions), provided that Purchaser shall accept and promptly pay -------- for all securities tendered prior to the date of such extension and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with each such extension. In addition, Parent and Purchaser agree that Purchaser shall from time to time extend the Offer, if requested by the Com pany, if at the Initial Expiration Date (or any extended expiration date of the Offer, including pursuant to this sentence, if applicable), all of the conditions to the Offer other than the Minimum Condition and/or the conditions set forth in clause (a) or clause (b) of Annex A shall have been waived or satisfied and the Minimum Condition and/or the conditions set forth in clause (a) or clause (b) of Annex A shall not have been satisfied, until the earlier of ten (10) business days after such expiration date or September 30, 2000 in the case of the Minimum Condition or November 30, 2000 in the case of clause (a) or clause (b) or such earlier date upon which either such condition shall not be reasonably capable of being satisfied prior to November 30, 2000. Upon the prior satisfaction or waiver of all the conditions to the Offer, and subject to the terms and conditions of this Agreement, Purchaser will, and Parent will cause Purchaser to, accept for payment, pur chase and pay for, in accordance with the terms of the Offer, all shares of Company Com mon Stock validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer.
(c) As soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with any amendments or supplements thereto, the "Schedule TO") with respect to the Offer, which shall . The Schedule ----------- TO will comply as to form and content in all material respects with the applicable provisions of the federal securities laws and will contain an the offer to purchase and form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The --------------- Parent and the Company each agrees to correct promptly any information provided by it for use in the Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), if and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the holders of Shares, extent that such information shall not contain any untrue statement of a material fact have be come false or omit to state misleading in any material fact required respect and to be stated therein supplement the information provided by it specifically for use in the Schedule TO or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they are were 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and to be disseminated to holders of Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination SEC. Parent and Purchaser agree to provide to the stockholders Company and its counsel any comments or other communications which Parent, Purchaser or their counsel may receive from the Staff of the CompanySEC with respect to the Offer Documents promptly after receipt thereof.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Wesley Jessen Visioncare Inc), Agreement and Plan of Merger (Novartis Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 and none of the events or conditions set forth in Annex A I hereto shall have occurred and be existingcontinuing (and shall not have been waived by the Acquisition Sub), then, not later than the first business day within five (5) Business Days 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 execution of this Agreement, Acquisition Sub shall commence (within the Purchaser shallmeaning of Rule 14d-2 under the Exchange Act) the Offer to purchase for cash all Shares at the Offer Price, subject to the provisions of this Agreement, commence a tender offer (the "Offer"A) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date of the Offer that number of Shares which, together with the Shares purchasable under the Stock Purchase Agreement and the Shares then owned by Parent or Acquisition Sub on the date of this Agreement, represents at least seventy-five percent (75%) of the Shares outstanding 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 (the "Minimum Condition"). Solely for purposes , and (B) the satisfaction or waiver of determining whether the other conditions set forth in Annex I hereto (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 has been satisfied, to be satisfied was caused solely by any Shares owned material breach by Parent or Purchaser Acquisition Sub of this Agreement and such failure has been waived by the Company, Acquisition Sub shall be deemed obligated to have been validly accept for payment and pay for Shares tendered and not withdrawn 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 Purchaser 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 price per Share payable in the Offer or Price and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVERprovided, that, unless previously approved one or more of the conditions to the Offer and the Merger shall not have been met, then, without the prior written consent of the Company, Acquisition Sub shall not decrease the Offer Price, change the form of consideration payable in the Offer (other than by adding consideration), decrease the Company in writing, no change may be made which decreases the price per Share payable number of Shares sought in the Offer, which changes the form of consideration to be 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 A 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 amend or waive the Minimum Condition if such waiver would result in to less than a majority of the Shares being accepted for payment or paid for pursuant outstanding on Expiration Date, impose additional conditions to the Offer, which, extend the Offer (except as hereinafter set forth in this Subsection 1.01(a), extends below) beyond the period date that is twenty (20) Business Days after commencement of the Offer beyond 45 days after or the date last day of commencement the last extension (in accordance with this Section 1.1), if any, of the Offer, whichever is later (the "Expiration Date"), or which otherwise amends the terms amend any condition of the Offer (including in any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of the Shares. Notwithstanding the foregoing; provided, the Purchaser however, that (x) if on any then scheduled Expiration Date, all Offer Conditions shall not have been satisfied or waived, Acquisition Sub may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 , extend or further extend the Offer for 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 the Parent or Acquisition Sub or purchasable under the Purchaser Stock Purchase Agreement) at any time to exercise any least 90% of the foregoing outstanding Shares 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 Conditions, extend the Offer on one or more occasions for an aggregate period of not more than 10 Business Days, provided that during such extension or extensions Acquisition Sub shall not be deemed waive the Offer Conditions other than the Minimum Condition. In addition, Acquisition Sub may, in its sole discretion, provide a waiver "subsequent offering period" in accordance with Rule 14d-11 under 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 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 SEC or the Purchaser with respect to staff thereof or any of period required by applicable law, in each case in its sole discretion and without 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 OfferCompany's consent.
(bc) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser Acquisition Sub shall file with the Securities and SEC, pursuant to Regulation M-A under the Exchange Commission Act (the "SECRegulation M-A") ), a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the "Schedule TO"). The Schedule TO shall contain an offer include the summary term sheet required under Regulation M-A and, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer Documents"). The Parent and Acquisition Sub agree to take all steps reasonably necessary to cause the Offer Documents shall comply as to 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 be filed with the SEC and on the date first published, sent or given disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by applicable federal securities laws. Parent and Acquisition Sub, on the statements thereinone hand, 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, the Purchaser and the Company agrees Company, on the other hand, agree to promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser respect or as otherwise required by law. Acquisition Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO before it is filed with the SEC. In addition, Parent and comment upon Acquisition Sub agree to provide the Company and its counsel with any 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 comments by Parent or Acquisition Sub, as the case may be, and all amendments any written or oral responses thereto.
(d) On the terms and supplements thereto subject to the prior satisfaction or waiver of the Offer Conditions, Parent shall provide or cause to their filing be provided to Acquisition Sub, and deposited with the SEC or dissemination 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 stockholders of the CompanyOffer.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX VIII and none of the events or conditions set forth in Annex A I hereto (the "Tender Offer Conditions") shall have occurred and be existingoccurred, thenas promptly as practicable, 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 but in no event later than the fifth business day after from the date of the public announcement of the execution of this Agreement, Parent shall cause the Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder (the "Exchange Act")) an offer to purchase all outstanding Shares at the Offer Price, shall, after affording the Company a reasonable opportunity to review and comment thereon, file all necessary documents with the Securities and Exchange Commission (the "SEC") in connection with the Offer (the "Offer Documents"), and shall use reasonable best efforts to consummate the Offer, subject to the provisions terms and conditions thereof. The obligation of this Agreementthe 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, commence a tender offer 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 Common Shares. 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) after the commencement of the Offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights AgreementExpiration Date"), between unless the Company Purchaser shall have extended the period of time for which the Offer is open pursuant to, and First Interstate Bank of Californiain accordance with, the two succeeding sentences 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 Rights Agent (collectivelyso extended, may expire. 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 "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration as promptly as practicable after such Expiration Date; provided that, (i) if on any scheduled Expiration Date of the Offer that all conditions to of the Tender Offer set forth Conditions (other than the Minimum Condition (as defined in Annex A hereto I) shall not have been satisfied or waived waived, the Offer may, but need not, be extended from time to time without the consent of the Company for such period of time as is reasonably expected by the Purchaser. The obligation of the Purchaser to accept be necessary to satisfy the unsatisfied conditions; provided further that the Offer may be extended by the Purchaser without the consent of the Company for paymentany period required by any rule, purchase and pay for Shares tendered pursuant regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, and (ii) if all of the Tender Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not Conditions are satisfied but less than a majority 90% of the outstanding Common Shares on a fully diluted basis shall have been validly tendered and not withdrawn in the Offer, the Purchaser shall be required to extend the Offer for one additional business day (or such longer time as may be agreed to by the Purchaser and the Company (an "Offer Extension"). If, following such Offer Extension, the Minimum Condition has not been satisfied, the Purchaser shall effect successive additional Offer Extensions (which Offer Extensions shall each be for one business day unless the Purchaser and the Company shall agree to a longer period) until the earlier to occur of (i) the close of business on the business day immediately prior to the expiration date of the Offer Special Meeting (the "Minimum Condition"). Solely for purposes of determining whether as defined herein) and (ii) such time as the Minimum Condition has been satisfied, any Shares owned by Parent or after which time the Purchaser shall be deemed to have been validly tendered and may not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in extend the Offer or to make for any other changes in reason. Without the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the prior written consent of the Company, (i) extend the Purchaser shall not waive the Minimum Condition or accept for payment or pay for any Shares in the Offer if, at the scheduled expiration date of the Offeras a result, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that Purchaser would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but acquire less than 90 percent the number of Shares have been validly tendered and not properly withdrawn pursuant necessary to satisfy the OfferMinimum Condition. It is agreed that the conditions set forth in Annex A Tender Offer Conditions are solely 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 (but not 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 (except as otherwise specifically provided in this Agreement), but need not, 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Pacific Scientific Co), Merger Agreement (Pacific Scientific Co)
The Offer. (a) Provided that 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 amend the Offer to reflect 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, 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 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 have been terminated in accordance with Article IX 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 none Parent shall cause the Purchaser to, on the terms and subject only to the prior satisfaction or waiver of the events or conditions set forth in Annex A shall have occurred hereto, consummate the Offer and be existing, then, not 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 practicable (but in no event later than the first business day two (2) Business Days 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 execution of this Agreementhereof), Parent and the Purchaser shall amend the Offer to Purchase (as so amended, the Purchaser shall"Amended Offer to Purchase") to contain the terms set forth in this Agreement and the conditions set forth in Annex A hereto, subject 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), commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights AgreementExpiration Date"), between of ten (10) Business Days from the date the Amended Offer to Purchase is first disseminated to security holders of the Company. The Purchaser and Parent shall cause the Amended Offer to Purchase to be disseminated to the security holders of the Company and First Interstate Bank within two (2) Business Days after the date of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashthis Agreement. The Purchaser shall accept for payment not, and pay for all Shares which have been validly tendered and Parent shall cause the Purchaser not withdrawn pursuant to to, decrease the Offer at Price or change the earliest time following expiration form of consideration to be paid in the Offer that all or decrease the number of Shares sought to be purchased in the Offer, amend the conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes impose conditions to the Offer in addition to other than those set forth in Annex A heretoA, in each case, without the prior written consent of the Special Committee, 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 Special Committee may withhold 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Sharesits sole discretion. Notwithstanding the foregoing, (i) the Purchaser mayshall extend the Offer (A) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law, 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 CompanySpecial Committee, (i) extend the Offer (A) if, at on the scheduled expiration date of the Offerthen 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-11 promulgated under the Exchange Act, or (C) for an aggregate period not to exceed five (5) Business Days, if all of the conditions to the Purchaser's obligation to purchase Shares shall not be Offer are satisfied until such time as such conditions are satisfied, or (ii) extend waived but the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent number of Shares have been validly tendered and not properly withdrawn pursuant (when added to the Offer. It is agreed (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 the conditions set forth in Annex A are for the sole benefit issuable upon conversion of the Parent and shares of Class B common stock, par value $.01 per share, of the Company owned by Parent, Purchaser and may be asserted by any other direct or indirect subsidiary of Parent (the Parent or "Class B Common Stock," and, together with the Purchaser regardless Class A Common Stock, the "Company Common Stock")) is less than 90% of the circumstances giving rise to any such condition (including any action or inaction by number of shares of Class A Common Stock that would be then outstanding assuming 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 conversion 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 OfferClass B Common Stock.
(bc) As promptly as reasonably practicable following execution of this AgreementOn the date the Offer to Purchase is amended, the Parent and the Purchaser shall file with the Securities SEC (i) an amended Schedule TO (together with all amendments and Exchange Commission (supplements thereto and including the exhibits thereto, the "SECSchedule TO/A") a Tender Offer Statement on Schedule 14D-1 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/A shall contain or shall incorporate by reference, among other things, the Amended Offer to Purchase and an offer amended form of letter of transmittal (the Schedule TO/A, the Amended Offer to purchase and Purchase, the related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which the Offer will be made13E-3/A, together with any amendments and supplements or amendments thereto, collectively, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were made, not misleading, except that no representation is made by the Parent or the Purchaser with respect to the Company's projections set forth in the Offer to Purchase or information supplied regarding the Company in the Offer Documents which was previously included in any SEC Document (as defined herein) filed by the Company in writing specifically for inclusion in and not superseded by a later SEC Document filed by the Offer DocumentsCompany as of the date of inclusion. Each of the Parent, Parent 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, 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 supplied by it specifically for inclusion 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, and each of the Parent respect and the Purchaser further agrees to shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel counsel, and the Special Committee and its counsel, shall be given a reasonable opportunity to review and comment upon the Offer Documents Schedule TO/A (and all amendments and supplements thereto shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Parent shall, and shall cause the Purchaser to, provide the Company and its counsel, and the Special Committee and its counsel, in writing with any comments or other communications that Parent, Purchaser or their filing with counsel may receive from time to time from the SEC or dissemination its staff with respect to the stockholders Offer Documents promptly after receipt of such comments 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 Companyfunds 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) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, the Parent shall issue a public announcement of the execution of this Agreementas promptly as practicable, and not but in no event later than the fifth five (5) business day days after the date of the public announcement of the execution by Buyer and Seller of this Agreement, Buyer shall cause Newco to commence the Purchaser shall, subject to Offer. The initial expiration date for the provisions of this Agreement, commence a tender offer (Offer shall be the "Offer") for all 20th business day following the commencement of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 PurchaserOffer. The obligation of the Purchaser Newco to accept for payment, purchase and pay for Shares for, any shares of Seller Common Stock tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer EXHIBIT C hereto (the "Minimum ConditionOFFER CONDITIONS"). Solely for purposes ) (any of determining whether the Minimum Condition has been satisfied, any Shares owned which may be waived in whole or in part by Parent or Purchaser shall be deemed Buyer in its sole discretion) and to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer Agreement.
(including any of the conditions set forth in Annex Ab) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser Buyer may, without the consent of the CompanySeller, cause Newco to (iA) extend the Offer ifOffer, if at the scheduled or extended expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase Shares Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (iiB) extend the Offer for a any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for an aggregate period of not more than 15 ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (iA) or (B) of this sentence ifsentence, if on the such expiration date of such extension, more than two-thirds but less than 90 percent of Shares there shall not have been tendered at least 90% of the outstanding shares of Seller Common Stock. Subject to the terms and conditions of the Offer and this Agreement, Buyer shall cause Newco to accept for payment, and pay for, all shares of Seller Common Stock validly tendered and not properly withdrawn pursuant to the Offer. It is agreed Offer that Newco becomes obligated to accept for payment and pay for, pursuant to the conditions set forth in Annex A are for Offer as promptly as practicable after the sole benefit expiration 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.
(bc) As promptly as reasonably practicable following execution On the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Buyer shall cause Newco to file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 (the "SCHEDULE 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, (as amended (the "Exchange Act"), defined herein) and the rules and regulations promulgated thereunder andand the Offer Documents, on the date filed with the SEC and on the date first published, sent or given to the holders of Sharesshares of Seller Common Stock, 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 were 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 ParentBuyer, the Purchaser Newco and the Company agrees Seller agree promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser Buyer further agrees to cause Newco to take all steps necessary to cause the Offer Documents Schedule 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 SharesSeller Common Stock, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company Seller and its counsel in writing shall be given reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the holders of Seller Common Stock. Buyer agrees to cause Newco to provide Seller and its counsel any comments the ParentBuyer, the Purchaser Newco 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 2 contracts
Sources: Merger Agreement (Applied Opsec Corp), Merger Agreement (Optical Security Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of Subject to the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution provisions of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not as promptly as practicable but in no event later than the fifth five business day days after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to and Parent shall cause the provisions of this AgreementPurchaser to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between ) the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to, and of Parent to cause the Purchaser to, accept for payment, purchase and pay for Shares for, any shares of Common Stock tendered pursuant to the Offer shall be subject to the (i) the Minimum Condition (as defined in Annex A), (ii) the condition that the 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 the Financing (the "Financing") necessary to consummate the Offering and the --------- Merger and the transactions contemplated hereby (the "Financing Condition") and ------------------- (iii) conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered attached hereto and not withdrawn prior to the expiration date other conditions of this Agreement. On the terms and subject to the conditions of the Offer (and this Agreement, the "Minimum Condition"). Solely Purchaser shall, and Parent shall cause the Purchaser to, pay for purposes all shares of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been Common Stock validly tendered and not withdrawn pursuant to the Offer that the Purchaser becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. The Purchaser expressly reserves the right to increase modify the terms of the Offer and to waive any condition of the Offer, except that, without the consent of the Company, the Purchaser shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per Share payable in the Offer or to make any other changes in the terms and conditions share of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration Common Stock to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, (iii) modify or which otherwise amends the terms of the Offer (including any of add to the conditions set forth in Annex A) A or otherwise amend the Offer in a any manner that is materially adverse to holders the Company's stockholders, (iv) except as provided in the next two sentences, extend the Offer, or (v) change the form of Sharesconsideration payable in the Offer. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at for a period of not more than 10 business days beyond the scheduled 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 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 satisfiedsatisfied or waived, or (iiiii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer and (iv) extend the Offer for any reason for a period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence ifsentence. In addition, on the Purchaser shall at the request of the Company extend the Offer for five business days if at any scheduled expiration 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 Offer any of the foregoing rights conditions to the Purchaser's obligation to purchase shares of Common Stock 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 satisfied; provided, however, that the Purchaser with respect shall not be required to any of extend the foregoing conditions (includingOffer beyond November 30, 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 Offer1997.
(b) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which shall contain an the "Schedule 14D-l"). The Schedule -------------- 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 exhibits, the offer to purchase pursuant to which the Offer shall be made (the "Offer to -------- Purchase") and related a form of letter of transmittal and summary advertisement -------- (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer ----- Documents"). The Offer Documents shall will comply as to form in all material respects with the requirements --------- provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were made, not misleading, except that no representation is made by the Parent or the Purchaser with respect to information supplied furnished by the Company to Parent or the Purchaser, in writing specifically writing, expressly for inclusion in the Offer Documents. The Company shall furnish to Parent and the Purchaser all information concerning the Company and 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 by 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 the Parent, 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 and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, will promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to will take all steps necessary to cause the Offer Documents as so corrected 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 federal securities laws. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 (including, without limitation, all documents filed therewith as exhibits) before it is filed with the SEC. In addition, Parent and the Purchaser agree to will provide the Company and its counsel in writing with any comments the comments, whether written or oral, Parent, the Purchaser or their counsel may receive from time to time 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 2 contracts
Sources: Merger Agreement (Hain Food Group Inc), Merger Agreement (Hain Food Group Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex A I hereto. “Fully-Diluted Basis” shall have occurred and be existingmean, then, not later than the first business day after execution as of this Agreementany date, the Parent shall issue a public announcement number of the execution shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and not later than the fifth business day after prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the public announcement of the execution of this AgreementOffer, the Purchaser shall, subject to in accordance with the provisions of this Agreement, commence a tender offer (the "Offer") for all terms of the outstanding shares of Common StockOffer, together with consummate the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company Offer and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all Shares which have been shares of Common Stock validly tendered and not withdrawn pursuant to the Offer at promptly after the earliest time following expiration of the Offer that all conditions (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in Annex A hereto shall have been satisfied or waived by this Agreement and having only the Purchaser. The obligation of Minimum Condition and the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the other conditions set forth in Annex A I hereto, including . Parent and Purchaser agree that the condition that Offer to Purchase will provide a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the "Minimum Condition"meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). Solely for purposes of determining whether The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to not have been validly tendered and not withdrawn pursuant satisfied or the other conditions to the OfferOffer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer waive or to make any other changes in modify the terms and conditions of the Offer; PROVIDED, HOWEVER, except that, unless previously approved without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company in writingor a duly authorized committee thereof), no neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer Price, (iii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes (iv) decrease the form number of consideration to be paid shares of Common Stock sought in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes (v) impose additional conditions to the Offer in addition to those set forth in Annex A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including vi) amend any of the conditions set forth in Annex AI in any manner adverse to the holders of the shares of Common Stock, or (vii) amend any other term of the Offer in a manner that is materially adverse to the holders of Sharesthe shares of Common Stock. Notwithstanding the foregoing, the Purchaser maymay (but shall not be obligated to), without the consent of the Company, (i) Company extend the Offer (x) beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the scheduled expiration Initial Expiration Date, any conditions to the Offer shall not have been satisfied or waived (in which event the term “Initial Expiration Date” shall mean the latest time and date of at which the Offer, any as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedCompany, or (ii) extend the Offer for a one or more periods not to exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied in such period, (y) for any period required by any rule, regulation, interpretation, or position of the Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than 15 business days twenty Business Days) beyond the latest expiration date that would otherwise be permitted under clause (ix) or (y) of this sentence sentence, if, on such expiration date, all of the date conditions to the Purchaser’s obligation to accept payment of such extensionthe Common Stock are satisfied or earlier waived, more than two-thirds but less than 90 percent the number of Shares have been shares of Common Stock validly tendered (and not properly withdrawn withdrawn) pursuant to the Offer. It is agreed , together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided, however, that Purchaser’s decision to extend the Offer in the case of this clause (z) shall constitute a waiver of the conditions set forth in Annex A are for the sole benefit clauses (d) and (f) (excluding any willful or intentional breach of any material obligation of the Parent Company) on Annex I and of its right to terminate the Purchaser and may be asserted by Agreement under Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the Parent or provisions of Section 8.1(b)(iii) of this Agreement, if, on the Purchaser regardless Initial Expiration Date any of the circumstances giving rise to any such condition events set forth in subparagraph (including any action or inaction c) of Annex I shall have occurred and be continuing and shall not have been waived by the Purchaser, unless any then, in each such action or inaction by case, the Purchaser would constitute a breach by shall extend the Offer for up to ten (10) Business Days. In the event the Minimum Condition is satisfied and the Purchaser purchases the shares of any of its covenants under this Agreement) or may be waived by Common Stock pursuant to the Parent or Offer, the Purchaser, in whole or in part at any time and from time to timePurchaser may, in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”). The failure by the Parent or In addition, the Purchaser at may increase the Offer Price (but not change 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect other condition to the Offer, which shall contain an offer to purchase ) and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which extend the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent law in connection with such increase, in each case in its sole discretion and without the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 consent of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Eagle Supply Group Inc), Merger Agreement (Gulfside Supply, Inc.)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, subject to the terms and none conditions of this Agreement, as promptly as practicable (and in any event within 10 Business Days) after the date hereof, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all Shares (other than Restricted Stock) at the Offer Price, subject to:
(i) there being validly tendered in the Offer and not withdrawn prior to any then scheduled Expiration Date (as defined below) that number of Shares which, together with the Shares then beneficially owned by Parent or Purchaser (if any), represents in the aggregate a majority of such Shares outstanding on a fully diluted basis on the date of purchase (where “on a fully diluted basis” means the number of Shares outstanding, together with the Restricted Stock and the shares of Common Stock which the Company may be required to issue pursuant to the exercise, conversion or exchange of any Company Options, RSUs, Equity Interests or other rights to acquire Shares then outstanding, whether or not vested or then exercisable) (the “Minimum Condition”); and
(ii) the satisfaction, or waiver by Parent or Purchaser, of the events or other conditions and requirements set forth in Annex A shall have occurred and be existing, then, not later than the first business day after execution I.
(b) The obligation 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all any Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Purchaser, of the other conditions and requirements set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior I. Subject to the expiration date prior satisfaction of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned and the satisfaction or waiver by Parent or Purchaser of the other conditions and requirements set forth in Annex I, Purchaser shall be deemed to have been (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the OfferOffer as promptly as practicable after Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer shall be paid net to the seller in cash, and without interest, subject to withholding as provided in Section 2.2(e).
(c) 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 and requirements set forth in Annex I. Parent and Purchaser expressly reserves reserve 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, that unless otherwise provided by this Agreement or as previously approved by the Company in writing, no Purchaser shall not (i) decrease the Offer Price; (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes ; (iii) reduce the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes ; (iv) impose conditions or requirements to the Offer that are different than or in addition to those the conditions and requirements set forth in Annex A 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 I; (v) amend or waive the Minimum Condition if such waiver would result in less than a majority Condition; (vi) amend any other terms of Shares being accepted for payment or paid for pursuant to the Offer, which, except as hereinafter Offer set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including Agreement in any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on the date first published, sent or given to the holders of Shares, or (vii) extend the expiration of the Offer in a manner other than set forth at Section 1.1(e) hereof.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall not contain any untrue statement expire at midnight (New York City time) on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of a material fact or omit to state any material fact required to be stated therein or necessary in order to make Rule 14d-2 under the statements thereinExchange Act) of the Offer (the “Initial Expiration Date”) or, in light of the circumstances under event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date to 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 has been so extended (the ParentInitial Expiration Date, or such later date to which the Purchaser Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the Company agrees promptly to correct any information supplied by it specifically for inclusion in the “Expiration Date”).
(e) 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity extended from time 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.time as follows:
Appears in 2 contracts
Sources: Merger Agreement (Teradyne, Inc), Merger Agreement (Nextest Systems Corp)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Article IX Section 7.01 and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 occurred or waived by be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including condition (the condition "Minimum Condition") that a number of Shares representing not less than at least a majority of the then outstanding ----------------- Shares, other than Shares on a fully diluted basis owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser and also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offersatisfaction of the other conditions set forth in Annex A hereto. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVER-------- however, that, unless previously approved by that the Company in writing, Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, Offer or which reduces the maximum number of Shares to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. The Per Share Amount shall, which broadens the scope subject to applicable withholding of such conditionstaxes, which increases the minimum number of Shares which must be tendered as a condition net to the acceptance for payment seller in cash, upon the terms and payment for shares in subject to the conditions of 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 . Subject to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after the date of commencement terms and conditions of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingPurchaser shall pay, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled as promptly as practicable after expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase for all Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 Offerwithdrawn.
(b) As promptly as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on --- Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-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, which the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement (such the Schedule 14D-1 and 14D-1, the documents therein pursuant to which Schedule 13E-3, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934Gambro, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the 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, the Purchaser and the --------------- Company agrees promptly agree to correct promptly any information supplied provided by it specifically any of them for inclusion 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 each of the Gambro, Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 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 federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Ren Corp Usa), Merger Agreement (Cobe Laboratories Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events or conditions set forth in Annex A I hereto shall have occurred and be existingcontinuing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to commence (within the Offer at the earliest time following expiration meaning 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer as promptly as practicable (and in any event not later than ten (10) business days) following the date hereof. The obligations of 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 expiration of the Offer that number of Shares which, together with the Shares then actually owned by Yahoo! or Purchaser or any direct or indirect wholly owned subsidiary of 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. For purposes of the foregoing, "Fully Diluted Basis" shall refer to 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. Subject to the prior satisfaction or waiver by Yahoo! or Purchaser of the Minimum Condition and the other 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. 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 I hereto. Purchaser shall not, and Yahoo! shall cause Purchaser not to, decrease the rules 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 date that is twenty (20) business days after commencement of the Offer (the "Initial Expiration Date") except as set forth below, or 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 Launch (such consent to be authorized by Launch's Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, Purchaser may, without the consent of the Launch, (i) extend the Offer beyond the Initial Expiration Date 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, at the scheduled expiration of the Offer, Yahoo! and regulations promulgated thereunder Purchaser shall not be in material breach of this Agreement and any of the conditions to Purchaser's obligation to accept Shares for payment, shall not be satisfied or waived and such condition is reasonably capable of being satisfied, or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission ("SEC"), or the staff thereof, applicable to the Offer. Purchaser may, without the consent of Launch, extend the Offer for a subsequent offering period of up to twenty (20) business days in accordance with Rule 14d-11 under the Exchange Act. 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 Launch.
(b) On the date the Offer is commenced, Yahoo! and Purchaser shall file with 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, supplements and exhibits thereto, the "Schedule TO"). The Schedule TO shall include the summary term sheet required under Regulation M-A and, on as exhibits, the date Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the "Offer Documents"). Yahoo! and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and on the date first published, sent or given disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. 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 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 the light of the circumstances under which they are were made, not misleading, except that no representation is made by the Parent Yahoo! or the Purchaser with respect to information supplied furnished by the Company in writing specifically Launch expressly for inclusion in the Offer Documents. Each of Yahoo! and Purchaser, on the Parentone hand, and Launch, on the Purchaser and the Company agrees other hand, agree to promptly to correct any information supplied provided by it specifically for inclusion 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 or as otherwise required by law. Yahoo! and each of the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company Launch and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents Schedule TO before it is filed with the SEC. In addition, Yahoo! and all amendments Purchaser agree to provide Launch and supplements thereto prior its counsel with any comments, whether written or oral, that Yahoo!, Purchaser or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders Offer Documents promptly after Yahoo!'s or Purchaser's, as the case may be, receipt of the Companysuch 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 this Agreement shall not have been terminated As promptly as practicable (but in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not any event no later than the first tenth (10th) business day after execution of this Agreement, the Parent shall issue a initial 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 AgreementCompany) 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with commence (within the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter meaning of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer (the "Offer") to purchase for cash all shares of the issued and outstanding Common Stock, par value $.001 per share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company, at a purchase price per Share of $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 obligations of 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 the Minimum Condition and the other conditions set forth in Annex A hereto. 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 amend any of the terms and conditions of the Offer; provided that without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof) Purchaser shall not amend or waive the Minimum Condition, decrease the Offer Price or decrease the number of Shares sought, change the form of consideration to be paid pursuant to the Offer, impose conditions to the Offer in addition to those set forth in Annex A hereto, or amend any other term or condition of the Offer in any manner adverse to the holders of the Shares or, except as provided below in this Section 1.1(a), extend the expiration date of the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of the Offer conditions as of any expiration date, 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 by applicable law. Notwithstanding the foregoing, Purchaser shall be entitled to extend the Offer, without the consent of the Company, 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 permitted by this Agreement. Any extension of the Offer pursuant to this Section 1.1(a) shall not, without the written consent of the Company, exceed the number of days that Purchaser reasonably believes will be necessary so that the Offer conditions will be satisfied. In addition, Purchaser may, without the consent of the Company, extend any then scheduled expiration date of the Offer for any period required by applicable rules, regulations, interpretations or 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 promulgated thereunder of the United States Securities and Exchange Commission (the "SEC"), 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 extent required by law in connection with such increase in each case without the consent of the Company.
(b) As soon as practicable on the date the Offer is commenced, Parent and 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 and including the exhibits thereto, the "Schedule TO"). The Schedule TO 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"). Parent and Purchaser represent that the Offer Documents will comply in all material respects with the 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 holders of SharesCompany'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 are were 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 Parent and Purchaser further agrees to take all steps necessary to cause the ParentOffer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the Purchaser 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 supplied provided by it specifically for inclusion 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 the Parent and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Schedule TO and the Offer Documents before they are filed with the SEC. In addition, Parent and all amendments Purchaser agree to provide the Company and supplements thereto prior its counsel in writing with any comments or other communications that Parent, Purchaser or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders Offer Documents promptly after the receipt of the Companysuch comments 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 this Agreement shall not have been terminated in accordance with Article IX IX, and none of the events or conditions set forth in paragraphs (a), (b), (c) (to the extent performance is required theretofore), (e) and (f) of Annex A I hereto shall have occurred and be existingcontinuing, 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, as promptly as practicable and not later than the fifth business day in any event within ten (10) Business Days after the date hereof, MergerSub shall 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 public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between Offer but after affording the Company reasonable opportunity to review and First Interstate Bank of Californiacomment thereon, as Rights Agent (collectively, the "Shares") at file a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant Tender Offer Statement on Schedule TO with respect to the Offer at the earliest time following expiration of the Offer that (together with all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase amendments and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, supplements thereto and including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingexhibits thereto, the Purchaser may, without the consent of the Company, (i“Schedule TO”) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file all other necessary documents with the Securities and Exchange Commission (the "“SEC"”) a Tender and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer Statement on Schedule 14D-1 with respect (the “Offer Documents”), and shall use its commercially reasonable efforts to consummate the Offer, which shall contain an offer subject to purchase the terms and related letter conditions thereof. Subject to the terms and conditions of transmittal this Agreement and summary advertisement to the satisfaction or waiver of the conditions set forth in Annex I hereto (such Schedule 14D-1 the “Tender Offer Conditions”), MergerSub shall, as soon as possible after the expiration of the Offer (or, if applicable, the expiration of the “initial offering period”), accept for payment, and the documents therein pay for (after giving effect to any required withholding Tax), all Company Common Shares validly tendered pursuant to which the Offer will be made, together with any supplements or amendments theretoand not withdrawn (the first date of acceptance for payment, the "Offer Documents"“Acceptance Date”). The Offer Documents shall comply as to 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 on 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, the Purchaser MergerSub and the Company agrees each agree promptly to correct any information supplied provided by it specifically for inclusion 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 the Parent and the Purchaser further agrees to MergerSub shall take all steps necessary to cause the Offer Documents Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer 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 securities laws. The Parent and the Purchaser agree to 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 in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff staff with respect to the Offer Documents as promptly as practicable after the receipt of such commentsthereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon 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 Documents 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 term 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 amendments 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 supplements thereto prior it is permitted under applicable Law to their filing with 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 dissemination its staff applicable to the stockholders Offer; or (3) if all of the CompanyTender 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 As long as (i) this Agreement shall not have been terminated in accordance with Article IX its terms and (ii) none of the events or conditions set forth described in Annex A Exhibit 1 shall exist or shall have occurred and be existingcontinuing, thenMerger Sub shall, not as promptly as practicable and in no event later than the first ten (10) 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date hereof, commence (within the meaning of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) a tender offer to purchase all of the outstanding shares of common stock, par value $0.10 per share (the “Common Stock”), of the Company (the “Shares”) at a price of $37.00 per Share in cash, net to the seller but subject to any required withholding of Taxes, subject to the conditions set forth in Exhibit 1 and the rules requirements of this Agreement (such tender offer and regulations promulgated thereunder andprice 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 filed with the SEC and on which is 20 business days after the date first publishedon 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, sent or given then Merger Sub may, from time to time in its sole discretion, extend the holders expiration time for the Offer in maximum increments of Shares10 business days to no later than June 30, shall 2006 (the “Outside Date”); provided, however, that notwithstanding the foregoing (i) Merger Sub may extend the Offer for any period required by any applicable Law (as defined in Section 5.1(i)) and (ii) after acceptance for payment of Shares for a further period of time not contain any untrue statement to exceed twenty (20) business days by means of a material fact subsequent offering period under Rule 14d-11 under the Exchange Act. Merger Sub expressly reserves the right to amend or omit to state any material fact required to be stated therein or necessary in order to make modify the statements therein, in light terms and conditions of the circumstances under which they are madeOffer in its sole discretion; provided, however, that notwithstanding the foregoing Merger Sub may not misleadingwaive the Minimum Condition, except that no representation is made by impose any conditions other than those set forth in Exhibit 1, modify the Parent or the Purchaser with respect conditions on Exhibit 1 (other than to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct waive any information supplied by it specifically for inclusion in the Offer Documents if and conditions on Exhibit 1 to the extent that such information shall have become false permitted by this Agreement), decrease the Offer Price below $37.00 per Share, change the form of consideration payable in the Offer, reduce the number of Shares sought in the Offer, extend the Offer other than as permitted by the immediately preceding sentence or misleading in amend any material respect, and each terms of the Parent and Offer in a manner adverse to the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as without the prior written consent of the Company. On the terms and subject to the extent required by applicable Federal securities laws. The Parent conditions of the Offer and the Purchaser agree to provide the Company this Agreement, Merger Sub shall pay for all Shares validly tendered and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect not withdrawn pursuant to the Offer Documents promptly that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the receipt expiration of the Offer. Merger Sub may, at any time, transfer or assign to one or more Subsidiaries of Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but any such commentstransfer or assignment shall not relieve Merger Sub of its obligations under this Agreement or the Offer. The Company and its counsel Whenever this Agreement requires Merger Sub to take any action, such requirement shall be given a reasonable opportunity deemed to review and comment upon include an undertaking on the Offer Documents and all amendments and supplements thereto prior part of Parent that it will cause Merger Sub to their filing with the SEC or dissemination to the stockholders of the Companytake such action.
Appears in 2 contracts
Sources: Merger Agreement (Lowrance Electronics Inc), Merger Agreement (Simrad Yachting As)
The Offer. (a) Provided that 1.1.1 As promptly as practical after the date of this Agreement on a date mutually agreeable to Parent, HoldCo and the Company (but in no event later than August 16, 2016), Merger Sub shall not have been terminated in (and Parent and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
1.1.2 In accordance with Article IX the terms and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer satisfaction or waiver (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 extent 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any is permitted by applicable Law) of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingI (collectively, the Purchaser may“Offer Conditions”), without Merger Sub shall (and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to), promptly (within the consent meaning of Rule 14e-1(c) of the CompanySecurities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (ithe “Exchange Act”)) extend following the Expiration Time, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer if, at Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the scheduled expiration date Exchange Act) thereafter) pay for all shares of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. It is agreed HoldCo shall (and Parent shall cause HoldCo to) provide or cause to be provided to Merger Sub, at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the conditions Offer.
1.1.3 The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in Annex A are for this Agreement and subject only to the sole benefit Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Parent and Offer not inconsistent with the Purchaser and may be asserted by terms of this Agreement; provided that, without the Parent or the Purchaser regardless prior written consent of the circumstances giving rise Company, Merger Sub shall not, and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub not to:
(i) decrease the Offer Price;
(ii) change the form of consideration to any such condition be paid in the Offer;
(including any action iii) decrease the number of shares subject to the Offer; or
(iv) impose additional conditions to the Offer or, except as permitted by this Agreement, otherwise amend, modify or inaction by the Purchaser, unless any such action or inaction by the Purchaser would constitute a breach by the Purchaser of supplement any of its covenants the conditions to the Offer or terms of the Offer in a manner materially adverse to the holders of the shares of Company Common Stock.
1.1.4 The Offer shall expire at Midnight (New York City time) on the date that is twenty (20) Business Days following commencement (within the meaning of Rule 14d-2 under this Agreementthe Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1.5, 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”).
1.1.5 Subject to the parties’ respective rights to terminate the Agreement pursuant to Section 7, the Offer may or shall, as applicable, be waived by the Parent or the Purchaser, in whole or in part at any time and extended from time to timetime as follows:
(i) if, in its sole discretion. The failure by at the Parent or the Purchaser at any time to exercise then-scheduled Expiration Time, any of the foregoing rights Offer Conditions has not been satisfied or waived by Parent, HoldCo and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and HoldCo shall not be deemed a waiver (and Parent shall cause HoldCo to) cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of any such right and five Business Days each (each such right shall be deemed an ongoing right which increment to end at 5:00 p.m. (New York City time), on the last Business Day of such increment) (or such other duration of up to 20 successive Business Days at the sole discretion of Parent and HoldCo or as may be asserted at any time agreed to by Parent, HoldCo and from time the Company) in order to time. Any determination by the Parent or the Purchaser with respect to any of the foregoing conditions (including, without limitation, permit the satisfaction of such conditions) Offer Condition(s); provided, however, that Merger Sub shall not be final and binding on required or permitted to extend the parties. The Company agrees that no Shares held by Offer to a date later than the Company will be tendered in the Offer.Outside Date; and
(bii) As promptly as reasonably practicable following execution Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "“SEC"”) or its staff, or The NASDAQ Global Select Market (“NASDAQ”) or its staff. Merger Sub shall not, and HoldCo shall (and Parent shall cause HoldCo to) not permit Merger Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.1.5 or as may otherwise be agreed in writing with the Company. Notwithstanding the foregoing, in the event that, as a result of the extension of the Offer in accordance with the provisions of this Section 1.1.5, the Expiration Time would occur on or after the date that is the Outside Date, the Expiration Time shall instead occur at 5:00 p.m., (New York City time), on the Business Day immediately preceding the Outside Date.
1.1.6 The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such amendment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided, however, that the Company may not effect such change except as expressly permitted by this Agreement.
1.1.7 In the event that this Agreement is terminated in accordance with Section 7, Merger Sub shall (and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to) as promptly as practicable (and in any event within one Business Day of such termination) irrevocably and unconditionally terminate the Offer, and shall not acquire any shares of Company Common Stock pursuant to the Offer and shall instruct any depository acting on behalf of Parent, HoldCo or Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
1.1.8 On the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent, HoldCo or Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer in accordance with Rule 14d-3 under the Exchange Act (together with all exhibits, which shall amendments and supplements thereto, the “Schedule TO”) that will contain an offer or incorporate by reference the Offer to purchase Purchase and form of the related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the TO, together with all documents included therein pursuant to which the Offer will be made, together with any supplements or amendments theretothe “Offer Documents”). Parent, HoldCo and Merger Sub shall cause, at Merger Sub’s expense, the "Offer Documents"). The Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit Company’s stockholders as and to state any material fact the extent 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 Documentsapplicable Law. Each of the Parent, the Purchaser HoldCo, Merger Sub and the Company agrees shall use its respective reasonable best efforts to promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser HoldCo further agrees agree to take all steps necessary use reasonable best efforts to cause promptly cause, at Merger Sub’s expense, the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and to promptly be disseminated to holders of Sharesthe Company’s stockholders, in each case as and to the extent required by applicable Federal securities lawsLaw. The Parent Company shall use reasonable best efforts to promptly furnish or otherwise make available to Parent, HoldCo, Merger Sub or Parent’s, HoldCo’s and Merger Sub’s legal counsel any information concerning the Company and the Purchaser agree Company’s Subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent, HoldCo or Merger Sub for inclusion in or in connection with the Offer Documents. Parent, HoldCo and Merger Sub shall give the Company and its counsel reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC. Parent, HoldCo and Merger Sub shall provide the Company and its counsel in writing with a copy of any comments the written comments, and a written summary of any oral comments, that Parent, the Purchaser HoldCo, Merger Sub or their counsel may receive from the SEC or its Staff staff with respect to the Offer Documents promptly after the receipt of any such comments. The Each of Parent, HoldCo and Merger Sub shall give 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 on any proposed written responses to their filing with any comments of the SEC or dissemination its staff with respect to the stockholders Offer Documents.
1.1.9 Parent, HoldCo, Merger Sub and the paying agent with respect to the Offer shall be entitled to deduct and withhold from the Offer Price payable pursuant to the Offer such amounts as are required to be deducted and withheld with respect to the making of such payment under the CompanyInternal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”), or under any provision of state, local or foreign Tax Law. To the extent amounts are so withheld and (if required) paid over to the appropriate Governmental Authority, the 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.
Appears in 2 contracts
Sources: Merger Agreement (Steinhoff International Holdings N.V.), Merger Agreement (Mattress Firm Holding Corp.)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth Section 8.1, as promptly as practicable (but in Annex A shall have occurred and be existing, then, any event not later than the first eight business day days 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 Purchaser's intention to commence the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Parent will cause Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to commence (within the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number meaning of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, 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, "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 Parent to cause Purchaser to commence the Offer, to consummate the Offer and to accept for payment and to pay for Shares validly tendered in the Offer and not withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in ANNEX A hereto (the "OFFER CONDITIONS"), and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the holders terms 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 hereby incorporated herein 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 Companyreference.
Appears in 2 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject Subject to the provisions of this AgreementAgreement and provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in ANNEX I hereto, Parent shall cause the Purchaser to, as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days following the initial public announcement of the Purchaser's intention to commence the Offer, commence a tender offer (within the "Offer"meaning of Rule 14d-2(a) for all under the Securities Exchange Act of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between the Company and First Interstate Bank of California, as Rights Agent (collectively), the "Shares") Offer for all of the outstanding Shares at a price of $10.50 18.00 per Share, net to the seller in cash. The , subject only (i) to a minimum of 2,649,538 Shares (or such other number of Shares, when added to the 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 accept for payment and pay for all constitute a majority of the Company's Fully Diluted Shares which have been (as defined in Section 4.2) (the "Minimum Shares") being validly tendered prior to the expiration or termination of the Offer and not withdrawn pursuant (the "Minimum Share Condition") and (ii) to the Offer at the earliest time following expiration of the Offer that all other conditions to the Offer set forth in Annex A hereto shall have been satisfied ANNEX I. The Purchaser may at any time transfer or waived assign to one or more corporations directly or indirectly wholly owned by Parent the Purchaser. The obligation right to purchase all or any portion of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum ConditionTendered Shares"). Solely for purposes , but no such assignment shall relieve the Purchaser 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 not withdrawn pursuant to the Offerits obligations hereunder. The Purchaser expressly reserves the right to increase waive any of the price per Share payable in conditions to the Offer or set forth in ANNEX I and to make any other changes in modify the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by without the Company in writingprior written approval of the Company, no change may the Purchaser shall not amend or modify the terms of the Offer to (i) reduce the cash price to be made which decreases the price per Share payable in paid pursuant to the Offer, (ii) reduce the number of Shares as to which changes the Offer is made, (iii) change the form of consideration to be paid in the Offer, which reduces (iv) modify or waive the maximum number of Shares to be purchased in the OfferMinimum Share Condition, which imposes 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 A heretoANNEX I. The Offer may not be extended without the Company's prior written consent; PROVIDED, HOWEVER, that the Purchaser may extend (and re-extend) the Offer for up to a total of 20 business days if, as of the initial expiration date, which broadens shall be 20 business days following commencement of the scope of such conditionsOffer, which increases the minimum there shall not have been validly tendered and not withdrawn that number of Shares which must necessary to permit the Merger to be tendered as effected without 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 period meeting of the Offer beyond 45 days after Company's stockholders in accordance with the DGCL.
(b) As soon as reasonably practicable on the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain or shall incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents included therein or incorporated therein by reference pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and the Purchaser agree that the Offer Documents shall comply as to 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 thereunder, and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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 or any of its representatives which is included in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct promptly any information supplied provided by it specifically for inclusion 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 the Parent and the Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so corrected amended or supplemented to be filed with the SEC and to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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. Parent and the Purchaser agree to provide the Company and its counsel any comments Parent, 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)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 AgreementThe parties hereto agree to cause RDO Tender to commence, and not later than RDO Tender agrees to commence, within the fifth business day after the date meaning of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or about April 28, 2003, an offer to purchase for cash all of the issued and outstanding Class A Shares of RDOE (other than those shares held by RDO Tender, RDO Holdings and the rules RDO Holdings Stockholders), at a price of $6.01 per share, net to the seller in cash, less any required withholding of taxes and regulations promulgated thereunder andwithout payment of interest. The obligation of RDO Tender to accept for payment and to pay for any Class A Shares tendered in the Offer will be conditioned upon, among other things, there having been validly tendered and not withdrawn prior to the expiration date of the Offer (as such date may be extended pursuant to the 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 filed with shares are accepted for payment that are not owned by RDO Tender, RDO Holdings and their affiliates and the SEC and on executive officers of RDOE (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 "Majority of the circumstances under which they are made, not misleading, except that no representation is made by the Parent or the Purchaser with respect Minority Condition"). The Offer will also be subject to information supplied by the Company in writing specifically for inclusion certain other conditions as described in the Offer Documentsto Purchase. Each Although the 90% Condition and the other conditions to the Offer may be waived by RDO Holdings and RDO Tender, the Majority of the Parent, Minority Condition may not. Subject to the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion conditions set forth in the Offer Documents if to Purchase, RDO Holdings and the RDO Holdings Stockholders will cause RDO Tender to accept for payment and pay for all Class A Shares tendered in the Offer as soon as RDO Tender is legally permitted to do so under applicable law, upon the expiration date of the Offer or any extension thereof. Notwithstanding any of the foregoing, ▇▇. ▇▇▇▇▇▇ may decide in his sole discretion at any time prior to the extent that such information shall have become false or misleading in any material respect, and each expiration date of the Parent Offer and the Purchaser further agrees to take all steps necessary for any reason whether to cause RDO Tender to abandon the Offer. Any decision whether to extend the Offer Documents or effect a subsequent offering period will be made solely by ▇▇. ▇▇▇▇▇▇, as so corrected to be filed with the SEC President of RDO Holdings and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities lawsRDO Tender. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect Any decision whether a condition to the Offer Documents promptly after the receipt has been satisfied will be made solely by ▇▇. ▇▇▇▇▇▇, as President of such comments. The Company RDO Holdings 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 CompanyRDO Tender.
Appears in 2 contracts
Sources: Agreement to Facilitate (Rdo Equipment Co), Agreement to Facilitate (Rdo Equipment Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none of the events set forth in paragraph (2)(iii) of Annex I shall exist or have occurred and be continuing, as promptly as practicable (and in any event within 10 Business Days) after the date of this Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase for cash any and all outstanding Shares at the Offer Price.
(b) Subject to the terms and conditions of 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 A I (the “Offer Conditions”) has been satisfied, or waived by Parent or Purchaser, and (iii) the Expiration Date, Purchaser shall have occurred (and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement of cause Purchaser to) consummate the execution of this Agreement, Offer in accordance with its terms and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been (without interest) validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions Purchaser becomes obligated to purchase pursuant to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserOffer. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares (without interest) tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction, or waiver by Parent or Purchaser, of each of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains, among other things, the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered I to this Agreement. Parent and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves reserve the right to (i) increase the price per Share payable in the Offer or to Price and (ii) waive any Offer Conditions and make any other changes in to the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, that unless previously approved otherwise provided by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser mayAgreement, without the prior written consent of the Company, neither Parent nor Purchaser shall (iA) extend decrease the Offer ifPrice, at (B) change the scheduled expiration date form of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 consideration payable in the Offer.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (GCP Sunshine Acquisition, Inc. A Delaware Corp), Agreement and Plan of Merger (American Land Lease Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and Section 8.01 hereof, none of the events or conditions set forth in on paragraphs (a) through (f) of Annex A II shall have occurred and be existingcontinuing and the Company is prepared (in accordance with Section 1.02(c)) to file with the United States Securities and Exchange Commission (the “SEC”) the Schedule 14D-9 on the same date as Merger Sub commences the Offer, then, not as promptly as practicable after the Agreement Date (and in any event no later than ten (10) Business Days after the first business day after execution date of initial public announcement of this Agreement, provided that the Company has so complied with the Pennsylvania Takeover Disclosure Law (to the extent actions are required to be taken by it) and is prepared to file with the SEC the Schedule 14D-9), Merger Sub shall, and Parent shall issue a public announcement cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the execution Securities Exchange Act of this Agreement1934, as amended (including the rules and not later than the fifth business day after the date of the public announcement of the execution of this Agreementregulations promulgated thereunder, the Purchaser shall“Exchange Act”)), subject the Offer to the provisions of this Agreement, commence a tender offer (the "Offer") for purchase all of the outstanding shares of Common Stock, together with Shares at the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cashOffer Price. The Purchaser shall obligation of Merger Sub to accept for payment and pay for all any Shares which have been validly tendered and not properly withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the scheduled expiration of the Offer (as it may be extended from time to time hereunder), and not properly withdrawn, a number of Shares that, together with the Shares then directly or indirectly owned by Parent, represents at least a majority of all Fully Diluted Shares immediately prior to the Share Acceptance Time (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in satisfaction of such guarantee) (the “Minimum Condition”), and (ii) the conditions set forth in Annex A hereto, including II (together with the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition", the “Offer Conditions”). Solely for purposes Merger Sub, or Parent on behalf of determining whether the Minimum Condition has been satisfiedMerger Sub, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable waive, in its sole and absolute discretion, in whole or in part, any of the Offer or Conditions and to make any other changes change in the terms and of or conditions of to the Offer; PROVIDEDprovided, HOWEVERhowever, that, that unless otherwise provided by this Agreement or previously approved by the Company in writingwriting (which approval may be granted or withheld by the Company in its sole and absolute discretion), (A) the Minimum Condition may not be waived or amended, (B) no change may be made which decreases the price per Share payable in the Offer, which that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or the number of Shares sought 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 A heretoII, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition or otherwise amends
01. Subject to the acceptance for payment terms and payment for shares in conditions of this Agreement, the OfferOffer shall expire at midnight, which waives New York City time, on 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 date that is twenty (20) Business Days (calculated as hereinafter set forth in this Subsection 1.01(a), extends Rule 14d-1(g)(3) under the period of Exchange Act) following the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any such time, the “Initial Expiration Date,” and such time, or such subsequent time to which the expiration of the conditions set forth Offer is extended in Annex A) in a manner that is materially adverse to holders accordance with the terms of Sharesthis Agreement, the “Expiration Date”). Notwithstanding anything in this Agreement to the foregoingcontrary, the Purchaser unless this Agreement has been terminated in accordance with Section 8.01, (i) Merger Sub (or Parent on its behalf) may, in its sole and absolute discretion, without the consent of the Company, (i) extend the Offer ifon one or more occasions, at in consecutive increments of up to ten (10) Business Days each, for any period up to and including the Outside Date if on any then-scheduled Expiration Date any of the Offer Conditions has not been satisfied or waived in writing by Merger Sub (or Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived, (ii) Merger Sub (or Parent on its behalf) may, in its sole and absolute discretion, without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or The NASDAQ Stock Market applicable to the Offer, (iii) except to the extent otherwise agreed in writing by the Company prior to any then-scheduled Expiration Date, Merger Sub (or Parent on its behalf) shall extend the Offer on one or more occasions, in consecutive increments of up to ten (10) Business Days each, up to and including the Outside Date, until the condition set forth in clause (ii) of the first paragraph of Annex II related to the HSR Act is satisfied or waived in writing by Merger Sub (or Parent on its behalf) and (iv) if on any scheduled Expiration Date, the Minimum Condition is not satisfied but all other Offer Conditions are satisfied, then Merger Sub (or Parent on its behalf) shall extend the Offer on a single occasion for a ten (10) Business Day period; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the Outside Date. Notwithstanding anything in this Agreement to the contrary, Merger Sub (or Parent on its behalf) may increase the Offer Price and extend the Offer up to and including the Outside Date to the extent required by Law in connection with such increase, in each case, in its sole and absolute discretion and without the consent of the Company. Following the expiration date of the Offer, any Merger Sub (or Parent on its behalf) may, in its sole and absolute discretion, provide a subsequent offering period or one or more extensions thereof (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act, if, as of the conditions commencement of such period, there shall not have been validly tendered (without regard to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in satisfaction of such guarantee), and not properly withdrawn pursuant to the Purchaser's obligation Offer that number of Shares necessary to purchase Shares shall not permit the Merger to be satisfied until such time as such conditions are satisfied, or (ii) extend effected without a meeting of shareholders of the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (iCompany in accordance with Section 1924(b)(1)(ii) of this sentence ifthe Pennsylvania Business Corporation Law (the “Business Corporation Law”). Subject to the foregoing, on including the date requirements of such extensionRule 14d-11 under the Exchange Act, more than two-thirds but less than 90 percent and upon the terms and subject to the conditions of the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable (within the meaning of Rule 14e-1(c) of the Exchange Act), (1) after the Expiration Date, all Shares have been validly tendered and not properly withdrawn pursuant to the Offer. It is agreed that the conditions set forth Offer and/or (2) all Shares validly tendered 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 partiesSubsequent Offering Period. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Laws relating to Taxes. If the payment of the Offer Price is to be made to a Person other than the Person in whose name the tendered Certificate is registered, it shall be a condition of payment that (x) the Certificate so tendered be properly endorsed or shall be otherwise in proper form for transfer, and (y) the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the Certificate tendered, or required for any other reason relating to such holder or requesting Person, or shall have established to the satisfaction of Parent and Merger Sub that such Tax either has been paid or is not required to be paid. To the extent that amounts are so withheld and paid over to the appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding were made by Merger Sub. Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company (in its sole and absolute discretion), except if this Agreement is terminated pursuant to Section 8.01. If the Offer is terminated by Parent or Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly (within the meaning of Rule 14e-1(c) of the Exchange Act) 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.
(b) As promptly as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Merger Sub shall (i) file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, and supplements thereto and including exhibits thereto, the “Schedule TO”) with the SEC, which shall contain an offer Offer to purchase Purchase reflecting the material terms and related conditions of this Agreement, and a form of the letter of transmittal and summary advertisement (such Schedule 14D-1 other ancillary Offer documents and the documents therein pursuant to which instruments, if any, in respect of the Offer will be made(together with the Schedule TO, collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"). The Offer Documents shall comply as to 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 on the date first published, sent or given (ii) subject to the Company’s compliance with Section 1.02(c), cause the Offer Documents to be disseminated to holders of Shares, Shares as and to the extent required by applicable Law. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact required to be stated therein or necessary Parent and Merger Sub 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 writing all information supplied by concerning the Company in writing specifically that may be required by applicable Law for inclusion in the Offer Documents. Each of the Parent, the Purchaser Merger Sub and the Company agrees promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser further agrees Merger Sub agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case as as, and to the extent extent, required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsLaw. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO before it is filed with the SEC, and comment upon Parent and Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Parent and Merger Sub shall promptly provide the Company and its counsel with copies of any written comments or communications, and shall inform them of any oral comments or communications, that Parent, Merger Sub or their counsel may receive after the Agreement Date from the SEC or its staff with respect to the Offer Documents and all amendments and supplements thereto prior to their filing or otherwise with the SEC or dissemination respect to the stockholders Offer promptly after receipt of those comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review any written responses to such SEC comments and Parent and Merger Sub shall give due consideration to the Companyreasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Orthovita Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated As promptly as practicable (but in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not no event later than the first five business day days 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 execution hereof), Purchaser shall commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, as amended (the Purchaser shall, subject to the provisions of this Agreement, commence a tender "Exchange Act")) an offer (the "Offer") to purchase for cash all shares of the issued and outstanding shares of Common Stock, together with the associated rights issued pursuant par value $.01 per share (referred to the Rights Agreement dated herein as of December 5, 1992, as amended (either the "Shares" or "Company Rights AgreementCommon Stock"), between of the Company and First Interstate Bank of CaliforniaCompany, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, based upon the representations set forth in Section 3.2 hereof, of $24.59 net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant cash (such price per Share, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer 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 the Purchaser to accept for paymentPrice"), purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date of the Offer Offer, that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition")) and to the other conditions set forth in Annex A hereto. Solely for purposes of determining whether Purchaser shall, on the terms and subject to the prior satisfaction or waiver (except that the Minimum Condition has been satisfiedmay not be waived) 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 Purchaser to commence the Offer and to accept for payment and to pay for any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered on or prior to the expiration of the Offer and not withdrawn pursuant shall be subject only to the OfferMinimum Condition and the other conditions set forth in Annex A hereto. 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 price per Share payable in the Offer or to make amend any other changes in of the terms and conditions of the Offer; PROVIDEDprovided that Purchaser shall not amend or waive the Minimum Condition, HOWEVERdecrease the Offer Price or decrease the number of Shares sought, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in pursuant to the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes impose conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a or amend any other term or 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 period of the Offer beyond 45 days after in any manner adverse to the date of commencement holders of the Offer, Shares or which otherwise amends extend the terms expiration date of the Offer (including any without the prior written consent of the conditions set forth in Annex A) in Company (such consent to be authorized by the Board of Directors of the Company or a manner that is materially adverse to holders of Sharesduly authorized committee thereof). Notwithstanding the foregoing, Purchaser shall, and Parent agrees to cause Purchaser to, extend the Offer for a period of ten (10) business days following the initial expiration date of the Offer, if any conditions to the Offer have not been satisfied or waived at such date. In addition, following such first extension of the Offer as provided in the preceding sentence, (i) Purchaser shall, and Parent agrees to cause Purchaser to, extend the Offer, at any time prior to the termination of this Agreement, for one or more periods of not more than ten business days, if at the expiration date of the Offer, as extended, all conditions to the Offer have not been satisfied or waived, and (ii) 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. In addition, Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 ten (10) business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this the immediately preceding sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares if there shall not 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 Offer at least 90% 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 Offeroutstanding Shares.
(b) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 l4D-l with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which shall contain an offer the "Schedule 14D-1"). The Schedule 14D-l will include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer Documents"). The Parent and Purchaser represent that the Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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 Parent and Purchaser further agrees to take all steps necessary to cause the ParentOffer Documents to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the Purchaser 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 supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-l and the Offer Documents before they are filed with the SEC. In addition, Parent and all amendments Purchaser agree to provide the Company and supplements thereto prior its counsel in writing with any comments or other communications that Parent, Purchaser or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders Offer Documents promptly after the receipt of such comments or other communications, and shall provide the CompanyCompany and its counsel a reasonable opportunity to comment on the proposed response of Parent and Purchaser to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Wolters Kluwer Us Corp), Merger Agreement (Ovid Technologies Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and (1) none of the events or conditions circumstances set forth in paragraphs (a) through (f) of Annex A hereto shall have occurred and be existingexisting (and shall not have been waived by Purchaser) and (2) the Company shall have complied with its obligations under Section 1.2 hereof, thenPurchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, not as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable after the date hereof, but in no event later than seven Business Days after the first business day after execution of this Agreement, the Parent shall issue a initial public announcement of the execution of this Agreement, and not Agreement (which initial public announcement shall occur no later than the fifth business day after the date of the public announcement of the first Business Day following execution and delivery of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only (x) to the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents at least 60% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, rights, convertible or exchangeable securities (including the Convertible Securities) or similar obligations then outstanding, but only to the extent then vested or exercisable or capable of being vested or exercisable on or prior to the Walk-Away Date) (the “Minimum Condition”), and (y) to the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer or and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, which imposes conditions to the Offer in addition to those the conditions set forth in Annex A 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 Condition, or modifies or amends any of the conditions set forth in less than a majority Annex A hereto or makes other changes in the terms of the Offer that are in any manner adverse to the holders of Shares being accepted or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, Purchaser shall extend the Offer for payment any period required by any rule, regulation or paid for pursuant interpretation of the Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. In addition, which(i) if at the initial scheduled expiration date, except as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after which shall be 20 Business Days following the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any subsequent scheduled expiration date, any of the conditions set forth to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived, Purchaser shall extend the Offer in Annex Aincrements of not more than 10 Business Days each until such time as such conditions are satisfied or waived; provided that Purchaser shall not be required to extend the Offer beyond the Walk-Away Date (as defined in Section 7.1(b)(iii)); subject, however, to the parties’ respective rights to terminate this Agreement pursuant to Section 7.1, and (ii) in a manner that is materially adverse if the number of Shares validly tendered and not withdrawn pursuant to holders the Offer, when taken together with Shares (if any) then owned by Parent or any of Shares. Notwithstanding its Subsidiaries, constitutes less than 90% of the foregoing, the Purchaser mayShares then outstanding, without the consent of the Company, Purchaser shall (isubject to applicable law) extend have the right to, and at the request of the Company shall, provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 Business Days after Purchaser’s acceptance for payment of the Shares then tendered and not withdrawn pursuant to the Offer, in which event Purchaser shall (A) give the required notice of such subsequent offering period and (B) immediately accept for payment and promptly pay for all Shares validly tendered and not withdrawn as of such expiration date. Subject to the terms of the Offer if, at and this Agreement and the scheduled satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Purchaser shall accept for payment and pay for all Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 promptly after it is permitted to do so under applicable law. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. It is agreed that The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash, upon the terms and subject to 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 partiesOffer. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in to Purchaser pursuant to the Offer.
(b) As promptly as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any all amendments, supplements or amendments and exhibits thereto, the "“Offer Documents"”). The Offer Documents Company shall comply as to form in promptly provide Parent with all material respects with information concerning 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 on 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 Company that is 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 included in the Offer Documents. Each Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the ParentShares as and to the extent required by applicable federal securities laws. Parent and Purchaser, on the Purchaser one hand, and the Company agrees Company, on the other hand, shall promptly to correct any information supplied provided by it specifically for inclusion use in the Offer Documents if and to the extent that such information it shall be or shall have become false or misleading in any material respect, and each of the Parent and the Purchaser further agrees to take all steps necessary to shall cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of the Shares, in each case case, as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser agree to provide the Company and its counsel with any comments, whether written or dissemination oral, that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the stockholders Offer Documents promptly after the receipt of such comments, to consult with the CompanyCompany and its counsel prior to responding to any such comments and to provide the Company with copies of all such responses, whether written or oral.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Quixote Corp), Merger Agreement (Quixote Corp)
The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth Section 8.1, as promptly as practicable (but in Annex A shall have occurred and be existing, then, any event not later than the first ten business day days 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 Purchaser's intention to commence the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Parent will cause Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to commence (within the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number meaning of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, 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, "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 Parent to cause Purchaser to commence the Offer, to consummate the Offer and to accept for payment and to pay for Shares validly tendered in the Offer and not withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in ANNEX A hereto (the "OFFER CONDITIONS"), and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given to the holders terms 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 hereby incorporated herein 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 Companyreference.
Appears in 2 contracts
Sources: Merger Agreement (Barnes & Noble Inc), Merger Agreement (Funco Inc)
The Offer. (a) Provided that the Company shall have complied with its obligations under Section 1.2(b) and Section 1.2(c), as promptly as practicable after the date hereof (and in any event no later than October 9, 2009), the Purchaser shall (and Parent shall cause the Purchaser to) commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to purchase for cash all the outstanding Shares at the Offer Price, subject 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 Shares then outstanding (determined on a fully diluted basis) and no less than a majority of the voting power of the 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 (if a greater majority) upon the adoption of this Agreement shall not have been terminated in accordance with Article IX and none approval of the events Merger (collectively, the “Minimum Condition”) and (ii) the satisfaction, or waiver by Parent or the Purchaser, of the other conditions and requirements set forth in Annex A shall have occurred and be existing, then, not later than I.
(b) Subject to the first business day after execution of this Agreement, the Parent shall issue a public announcement satisfaction of the execution of this AgreementMinimum Condition and the satisfaction, and not later than or waiver by Parent or the fifth business day after the date Purchaser, of the public announcement of the execution of this Agreementother conditions and requirements set forth in Annex I, the Purchaser shall, subject to shall (and Parent shall cause the provisions of this Agreement, commence a tender offer (the "Offer"Purchaser to) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not properly withdrawn pursuant to the Offer at as promptly as practicable after the earliest time following expiration of the Offer that all conditions Purchaser is legally permitted to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaserdo so under applicable Law. The obligation Offer Price payable in respect of the Purchaser to accept for payment, purchase each Share validly tendered and pay for Shares tendered not properly withdrawn pursuant to the Offer shall be subject paid net to the seller in 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 to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex A hereto, including I. Parent and the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves reserve the right to waive any of the conditions and requirements set forth in Annex I, 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, that unless otherwise contemplated by this Agreement or as previously approved by the Company in writing, no the Purchaser shall not (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces (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 adverse to the holders of Shares or the 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 imposes 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 Purchaser shall not be required to extend the Offer beyond December 31, 2009 (the “Initial Outside Date”) if any condition to the Offer has not been satisfied on or prior to the Initial Outside Date; provided, however, that, in the event that on the Initial Outside Date, (i) all of the conditions to the Offer in addition to those set forth in Annex A heretohave been satisfied, which broadens or waived by Parent and the scope of such conditionsPurchaser, which increases other than the minimum number of Shares which must be tendered as a condition HSR Condition and/or the Governmental Approval Condition, but the HSR Condition and/or the Governmental Approval Condition has not been satisfied or (ii) either Parent, the Purchaser, the Company or their counsel has received comments from the SEC or its staff with respect to the acceptance for payment and payment for shares in Schedule TO, the OfferOffer Documents or the Schedule 14D-9 which remain unresolved or, which waives if resolved, require 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 period expiration date of the Offer beyond 45 tender to be extended, the Initial Outside Date automatically shall be extended by 30 days after one time (in each case, such extended date, the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares“Extended Outside Date”). Notwithstanding the foregoing, the Purchaser may, in its sole discretion without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions but subject to the Purchaser's obligation Company’s right to purchase Shares shall not be satisfied until such time as such conditions are satisfiedterminate this Agreement pursuant to Article 7, or (ii) extend the Offer for a period of not one or more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence periods, if, on the date at any then scheduled Expiration Date, any 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 I shall not have been satisfied or waived. In addition, subject to the right of Parent to terminate this Agreement (and the Offer) in accordance with Section 7.1, the Purchaser shall extend the Offer for the sole benefit any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Parent U.S. Securities and Exchange Commission (the “SEC”) (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 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 timemay, 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 terms and conditions of this Agreement and the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and promptly pay for, all Shares that are validly tendered pursuant to the Offer during any such “subsequent offering period.” The failure 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, 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 Parent Purchaser, or this Agreement is validly terminated prior to the Purchaser at any time to exercise any acceptance for payment 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, 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.
(bh) As promptly soon as reasonably practicable following execution on the date of this Agreementthe commencement of the Offer, the Parent and the Purchaser shall file with the Securities and SEC, in accordance with Rule 14d-3 under the Exchange Commission (the "SEC") Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer that will comply with the applicable provisions of the federal securities Laws (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and related Purchase, a form of letter of transmittal and a form of summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). The Parent and the Purchaser agree to cause the Offer Documents shall comply as to 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 be filed with the SEC and on the date first published, sent or given disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit in each case, as and to state any material fact the extent 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 Exchange Act. Parent or and the Purchaser with respect Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information supplied provided by it for use in the Company in writing specifically for inclusion in Schedule TO and the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer 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 each of the Parent and the Purchaser further agrees to take all steps necessary agree to cause the Schedule TO and the Offer Documents Documents, as so corrected 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 Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsExchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC, and all amendments Parent and supplements the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto prior by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, the Purchaser or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto by Parent, the CompanyPurchaser, 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 this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer circumstances set forth in Annex A hereto shall have been satisfied occurred or waived by be existing, Purchaser agrees to, and Parent agrees to cause Purchaser to, commence the PurchaserOffer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the first public announcement of the execution hereof. The Parent and Purchaser agree that the obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including that (i) the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer, combined with the Shares already owned by Parent, Purchaser or any of their affiliates, constitute at least 60% of the then outstanding Shares at the expiration of the Offer (the "Minimum Stock Condition"). Solely for purposes , (ii) Purchaser has acquired or is simultaneously acquiring not less than 66 2/3% in the aggregate principal amount of determining whether the Minimum Condition has been satisfiedoutstanding Notes (the "Note Purchase Condition"), any Shares owned by Parent or Purchaser and (iii) also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offer. The satisfaction of the other conditions set forth in Annex A. Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that Parent and Purchaser agree that no change may be made without the consent of the Company which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which eliminates the Note Purchase Condition, which reduces the Minimum Stock Condition to below 51% of the then outstanding Shares, which otherwise modifies or amends the conditions to the Offer or any other term of the Offer in a manner that is materially adverse to the holders of the Shares, which imposes conditions to the Offer in addition to those set forth in Annex A hereto, hereto or 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 period expiration date of the Offer beyond 45 days after the date of commencement of the OfferJanuary 4, or which otherwise amends the terms of the Offer 1999 (including any of the conditions set forth in Annex A) in a manner except that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) may extend the Offer if, at the scheduled expiration date of the OfferOffer through January 9, 1999 as required to comply with any rule, regulation or interpretation of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC")). The Per Share Cash 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. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Stock Condition), Purchaser agrees to, and Parent agrees to cause Purchaser to, pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
(b) As soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser agree that Parent and Purchaser will file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which shall Offer and the other Transactions (as hereinafter defined). Parent and Purchaser agree that the Schedule 14D-1 will contain or will incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Parent and Purchaser will take all steps necessary to ensure that the Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), applicable federal and the rules state securities laws. Parent and regulations promulgated thereunder and, on the date filed with the SEC and on 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, the Purchaser and the Company agrees promptly agree to correct promptly any information supplied provided by it specifically any of them for inclusion 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 each of the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 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 federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (HSC Acquisition Corp), Merger Agreement (Hills Stores Co /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX On the terms and none of subject to the events or conditions set forth in Annex A shall have occurred and be existing, 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 within seven (7) business day after days from the date of the public announcement of the execution of this Agreementhereof, the Purchaser shall, subject to Buyer shall (or shall cause Merger Sub to) commence (within the provisions meaning of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)), the Offer to purchase any and all outstanding shares of Company Common Stock for consideration per share equal to $5.80 (the “Offer Consideration”) in cash. On the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, the Buyer shall (or shall cause Merger Sub to) accept for payment all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer and shall pay the Offer Consideration for all such shares of Company Common Stock promptly after acceptance. The obligation of the Buyer (either directly or through Merger Sub) to commence the Offer and to accept for payment and pay the Offer Consideration for shares of Company Common Stock validly tendered in the Offer and not properly withdrawn shall be subject to the conditions set forth in Annex I to this Agreement (which is annexed to this Amendment).
(b) The initial expiration date of the Offer shall be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the Exchange Act). If on or prior to any then scheduled expiration date of the Offer, 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 the Buyer or Merger Sub if permitted hereunder, the Buyer shall (and shall cause Merger Sub to) extend the Offer for periods of up to ten (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 Article VIII. The Buyer expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, the Buyer shall not:
(i) change the form of consideration payable in the Offer, decrease the Offer Consideration, or decrease the number of shares of Company Common Stock sought pursuant to the Offer;
(ii) extend the expiration date of the Offer except (A) as required by this Agreement or 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 so as to comply with applicable rules and regulations of the SEC;
(iii) waive the Minimum Condition;
(iv) amend any term of the Offer in any manner adverse to holders of shares of Company Common Stock; or
(v) impose any condition to the Offer not set forth in Annex I. Neither the Buyer nor Merger Sub shall terminate or withdraw the Offer prior to the then scheduled expiration of the Offer unless this Agreement is validly terminated in accordance with its terms, in which case the Buyer shall (or shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) business day) after such termination of this Agreement. The Buyer may, without the consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Exchange Act following its acceptance for payment of shares of Company Common Stock in the Offer.
(c) On the date of commencement of the Offer, the Buyer shall (or shall cause Merger Sub to) file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain an offer to purchase (the “Offer to Purchase”), a form of the related letter of transmittal, and ancillary documents and instruments pursuant to which the Offer will be made (collectively, together with any supplements or amendments thereto, the “Offer Documents”). The Buyer and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on the Schedule TO and the other Offer Documents prior to the filing thereof with the SEC, and the rules Buyer and regulations promulgated thereunder Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). The Buyer and Merger Sub agree that the Offer Documents shall comply in all material respects with the requirements of applicable U.S. federal securities laws and, on the date first filed with the SEC and on the date first published, sent or given to the holders of SharesCompany’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 are were made, not misleading, except that no covenant, agreement, representation or warranty is made by the Parent Buyer or the Purchaser Merger Sub with respect to information supplied by the Company in writing specifically or any of its stockholders for inclusion or incorporation by reference in the Offer Documents. The Buyer and Merger Sub shall take all steps necessary to cause the Offer Documents to be disseminated to holders of shares of Company Common Stock, as and to the extent required by applicable U.S. federal securities laws. Each of the ParentBuyer, the Purchaser Merger Sub and the Company agrees shall promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent Buyer and the Purchaser further agrees to Merger Sub shall take all steps necessary to cause amend or supplement the Schedule TO and, as applicable, the Offer Documents and to cause the Schedule TO as so corrected amended and supplemented to be filed with the SEC and the Offer Documents as so amended and supplemented to be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable Federal U.S. federal securities laws. The Parent Buyer and the Purchaser agree to Merger Sub shall provide the Company and its counsel in writing with a copy of any written comments or telephonic notification of any oral comments the ParentBuyer, the Purchaser Merger Sub 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 thereof, shall provide the Company and its counsel shall be given a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC or its staff (including a reasonable opportunity to review and comment upon on any such response, which comments the Buyer and Merger Sub shall give reasonable and good faith consideration), and shall provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of the Buyer or Merger Sub or their counsel.
(d) The Buyer shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(e) The Buyer and Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer Documents such amounts as the Buyer OR Merger Sub, as the case may be, reasonably determines that it is required to deduct and all amendments and supplements thereto prior to their filing withhold with the SEC or dissemination respect to the stockholders making of such payment under the CompanyInternal Revenue Code of 1986, as amended (the “Internal Revenue Code”), or under any other applicable law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 occurred or waived by be existing, Purchaser shall commence the PurchaserOffer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the date hereof. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including condition (the condition "Minimum Tender -------------- Condition") that a at least the number of Shares representing not less than a majority that combined with the Shares --------- already owned by Parent, Purchaser or any of their affiliates shall constitute at least 90% of the then outstanding Shares on a fully diluted basis the date that Shares may be accepted for payment by Purchaser shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser and also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offersatisfaction of the other conditions set forth in Annex A hereto. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by without the Company in writingprior written -------- ------- consent of the Company, no change may be made (i) which decreases the price per Share payable in the Offer, (ii) which changes the form of consideration to be paid in the Offer, (iii) which, except as set forth in the next succeeding sentence, extends the period that the Offer is outstanding, (iv) which reduces the maximum number of Shares to be purchased in the Offer, Offer or (v) which imposes conditions to the Offer in addition to those set forth in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition . Notwithstanding anything to the acceptance contrary contained herein, without the consent of the Company, Parent and Purchaser may extend the expiration date for payment the Offer for one or more periods not to exceed thirty (30) days in the aggregate. The Per Share Amount shall, subject to applicable withholding of taxes, be paid net to the seller in cash, upon the terms and payment for shares in subject to the conditions of the Offer. Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Tender Condition), Purchaser shall pay, as promptly as practicable after expiration of the Offer, which waives the Minimum Condition if such waiver would result in less than a majority of for all Shares being accepted for payment or paid for pursuant to validly tendered into and not withdrawn from, the Offer, which, except .
(b) As soon as hereinafter set forth in this Subsection 1.01(a), extends the period of the Offer beyond 45 days after reasonably practicable on the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 (together with --- all amendments and supplements thereto, the "Schedule 14D-1") with respect to -------------- the OfferOffer and the other Transactions (as hereinafter defined), which shall have been provided to the Company and to which the Company shall not have reasonably objected. The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees agree to --------------- correct promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 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 federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Agreement and Plan of Merger (Lpiv Acquisition Corp), Agreement and Plan of Merger (Durakon Industries Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 9.01 hereof and that none of the events or conditions set forth in Annex clauses (a) through (h) of ANNEX A hereto shall have occurred or be continuing, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and be existingregulations thereunder, thenthe "EXCHANGE ACT")) the Offer as promptly as reasonably practicable after the date hereof, not but in no event later than seven (7) business days after the first business day after initial public announcement of the execution of this Agreement; PROVIDED; HOWEVER, in the Parent event the Company shall issue a have failed to provide mailing labels to Purchaser pursuant to Section 2.02 hereof within five (5) business days after the initial 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to commence the Offer at the earliest time following expiration within two (2) business days of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. receipt of such labels.
(b) The obligation of the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to (x) the conditions set forth in Annex A hereto, including satisfaction of the condition (the "MINIMUM CONDITION") that a at least the number of Shares representing not less than that, when added to Shares, if any, already owned by Parent, shall constitute (A) a majority of the then outstanding Common Shares on (including, without limitation, all Common Shares issuable upon the conversion of the Series A Shares or upon the exercise or conversion of any options, warrants, rights or other convertible securities), or such higher percentage of such class of securities as may be required to approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, and (B) a fully diluted basis majority of the then outstanding Series A Shares, or such higher percentage of such class of securities as may be required to approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, shall have been validly tendered and not withdrawn prior to the expiration date of the Offer Offer, and (y) the "Minimum Condition"). Solely for purposes satisfaction of determining whether each of the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The other conditions set forth in ANNEX A hereto.
(c) Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share payable in Common Amount and the Offer or Per Share Preferred Amount, 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, that no change may be made which (i) decreases the price per Per Share payable in Common Amount or the OfferPer Share Preferred Amount, which changes (ii) increases the form of consideration to be paid in Per Share Preferred Amount such that the OfferPer Share Preferred Amount is greater than the amount obtained by multiplying the Per Share Common Amount by two (2) or the Per Share Common Amount such that the Per Share Common Amount is no greater than the amount obtained by dividing the Per Share Preferred Amount by two (2), which (iii) reduces the maximum number of Shares to be purchased in the Offer, which (iv) changes the form of consideration to be paid in the Offer, (v) extends the Offer except as provided in this Section 2.01, (vi) imposes conditions to the Offer in addition to those set forth in Annex ANNEX A hereto, which broadens hereto or amends the conditions set forth in ANNEX A to broaden 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 (vii) reduces or 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 without the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period prior approval of the Offer beyond 45 days after the date of commencement of the OfferCompany, or which otherwise (viii) amends the any other terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to the holders of the Shares. Notwithstanding the foregoing, the in addition to its rights under paragraph (e) below, Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (iiA) extend the Offer for a period of not more than 15 thirty (30) business days beyond the latest scheduled expiration date that would otherwise date, which shall be permitted under clause twenty (i20) business days following the commencement of this sentence the Offer, if, on at the date scheduled expiration 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 conditions to Purchaser's obligation to accept Shares for payment, shall not be deemed a waiver satisfied or waived, or (B) extend the Offer for any period required by any rule, regulation or interpretation 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer. In addition, if, on the initial scheduled expiration date of the Offer, the sole condition remaining unsatisfied is the failure of the waiting period, if any, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), to have expired or been terminated, then Purchaser may extend the Offer from time to time until the earlier to occur of (i) December 31, 2002 and (ii) the fifth (5th) business day following the public announcement of the expiration or termination of the applicable waiting period under the HSR Act. Parent and Purchaser agree that, if any one or more of the conditions to the Offer set forth on ANNEX A are not satisfied and none of the events set forth in paragraphs (b), (f) or (g) of ANNEX A that would permit Purchaser not to accept Shares tendered for payment has occurred, then, PROVIDED that such other conditions set forth in ANNEX A are reasonably capable of being satisfied within thirty (30) days in Parent and Purchaser's sole judgment, Purchaser shall, at the request of the Company, extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied within such thirty (30) day period in Parent and Purchaser's sole judgment; PROVIDED, HOWEVER, in no event shall Purchaser be required to extend the Offer beyond December 31, 2002.
(d) The Per Share Common Amount and the Per Share Preferred Amount shall, subject to applicable withholding of taxes, be paid net to the seller in cash, upon the terms and subject to the conditions of the Offer. Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. If the payment equal to the Per Share Common Amount or Per Share Preferred Amount or both, as the case may be, 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 the Per Share Common Amount or Per Share Preferred Amount or both, as the case may be, to a person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(e) Purchaser may, in its sole discretion, provide a "subsequent offering period" as contemplated by Rule 14d-11 under the Exchange Act following its acceptance for payment of Shares in the Offer.
(f) As promptly as reasonably practicable on the date of commencement of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "SCHEDULE TO") with respect to the Offer, which . The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly agree to correct promptly any information supplied provided by it specifically any of them for inclusion 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 the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC 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 Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC or dissemination to holders of Shares. Parent and Purchaser agree to shall provide the Company and its counsel in writing with any comments the Parent, the Parent or 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 comments and shall provide the Company and its counsel shall be given with a reasonable opportunity to review and comment upon participate in the Offer Documents and all amendments and supplements thereto prior response of Parent or Purchaser to their filing with the SEC or dissemination to the stockholders of the Companysuch comments.
Appears in 2 contracts
Sources: Merger Agreement (Bei Medical Systems Co Inc /De/), Merger Agreement (Bei Medical Systems Co Inc /De/)
The Offer. (a) Provided Provided, that nothing shall have occurred that gives rise to a right of Parent to terminate the Offer or this Agreement shall not have been terminated in accordance with Article IX and Agreement; provided, further, that none of the events or conditions set forth in Sections (iii)(c) through (iii)(e) of Annex A hereto shall have occurred and be existing, then, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement continuing as of the execution date that Purchaser would otherwise commence the Offer; and provided, further, that the Company has fulfilled its obligation to provide information to Parent and Purchaser on a timely basis as contemplated by Section 2.1(f), Purchaser shall commence (within the meaning of this Agreement, and not later than Rule 14d-2 under the fifth business day Exchange Act) the Offer as promptly as reasonably practicable after the date hereof. Parent or Purchaser shall provide the Company with prior written notice if Purchaser fails to commence the Offer within 10 business days of the public announcement date of this Agreement together with a brief explanation of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer reasons therefore.
(the "Offer"b) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for any Company Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including (x) the condition (the “Minimum Condition”) that a at least that number of Company Shares representing not less than a majority equal to (i) fifty percent (50%) of the then outstanding Company Shares on a fully diluted basis (including all Company Shares potentially issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than the Rights) including the Company RSUs, in each case, which are convertible or exercisable prior to the Outside Date but excluding the Subject Shares) plus (ii) the Subject Shares, shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (y) the "Minimum Condition")other conditions set forth in Annex A hereto. 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition which may not be amended or waived), to increase the price per Company Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVER, that, unless previously approved by that without the prior written consent of the Company in writing, no change may be made which that decreases the price per Company Share payable in the Offer, which changes the form of consideration to be paid payable in the Offer, which reduces the maximum number of Company Shares sought to be purchased in the Offer, which imposes adds to the conditions to the Offer in addition to those set forth in Annex A hereto, which broadens extends the scope of such conditions, which increases the minimum number of Shares which must be tendered Offer other than 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(aSection 2.1, or modifies or amends any condition to the Offer in any manner adverse to the holders of Company Shares.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Expiration Date”), extends unless the period of time for which the Offer beyond 45 days after is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1(c) (in which event the term “Expiration Date” shall mean the latest time and date of commencement of as the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Sharesas so extended, may expire). Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer for one or more periods beyond the scheduled expiration date if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's ’s obligation to purchase accept Company Shares for payment shall not be satisfied until or waived, for such period of time as Purchaser reasonably determines to be necessary to permit such conditions are satisfiedto be satisfied or waived. In addition, or (ii) Purchaser shall extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Wind River Systems Inc), Merger Agreement (Intel Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events or conditions set forth in Annex A I hereto (the ‘‘Tender Offer Conditions’’) shall have occurred and be existingoccurred, thenas promptly as reasonably practicable, not later than the first business day after execution of this Agreement, the Parent shall issue a public announcement cause Purchaser to commence (within the meaning of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject Exchange Act) an offer to the provisions of this Agreement, commence a tender offer (the "Offer") for purchase all of the outstanding shares of Seller Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Stock at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration Price, and shall, upon commencement of the Offer that but after affording the Seller a reasonable opportunity to review and comment thereon, file a Schedule TO and all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file necessary documents with the Securities and Exchange Commission (the "‘‘SEC"’’) a Tender and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer Statement on Schedule 14D-1 with respect (the ‘‘Offer Documents’’), and shall use its reasonable best efforts to consummate the Offer, which subject to the terms and conditions thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and Parent shall contain an offer cause it to, as soon as possible after the expiration of the Offer, accept for payment, and pay for (after giving effect to purchase and related letter any required withholding Tax), all shares of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein Seller Common Stock validly tendered pursuant to which the Offer will be made, together with any supplements or amendments theretoand not withdrawn (the date of acceptance for payment, the "Offer Documents"‘‘Acceptance Date’’). The Offer Documents shall comply as to form in all material respects with .
(b) Without the requirements prior written consent of the Securities Exchange Act Seller, the Purchaser shall not decrease the Offer Price or change the form of 1934consideration payable in the Offer, as amended (decrease the "Exchange Act")number of shares of Seller Common Stock sought to be purchased in the Offer, and impose additional conditions to the rules and regulations promulgated thereunder and, on Offer or amend any other term of the date filed with the SEC and on the date first published, sent or given Offer in any manner adverse to the holders of Sharesshares 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 waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to Merger, including clearance under the German Act against Restraints of Competition, shall have not contain expired or been terminated, Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any untrue statement other material applicable foreign statutes or regulations , including clearance under the German Act against Restraints of a material fact or omit to state Competition, (ii) if 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 madeTender Offer Conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, 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 shall extend the Offer Documents. Each from time to time until the earlier of (A) five (5) Business Days after the Parent, time such condition or conditions shall no longer exist or (B) such time at which the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion matters described in the Offer Documents if and to the extent that such information paragraphs (a) or (b) shall have become false final and non-appealable; or misleading in any material respect, and each (iii) if all of the Parent Tender Offer Conditions are satisfied and more than 50% but less than 90% of the outstanding 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 further agrees to take will accept for payment and pay for all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC shares of Seller Common Stock validly tendered and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect not validly withdrawn pursuant to the Offer Documents promptly as soon as practicable 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 Expiration Date of the CompanyOffer.
Appears in 2 contracts
Sources: Merger Agreement (Digitas Inc), Merger Agreement (Digitas Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth Section 8.1 hereof, as promptly as practicable (but in Annex A shall have occurred and be existing, then, not no event later than the first five business day days 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 execution of this Agreement), Purchaser shall commence (within the Purchaser shall, subject to meaning of Rule 14d-2 under the provisions Securi- ties Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for paymentPrice, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there being validly tendered and not withdrawn prior to the expiration date 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 "Minimum ------- Condition") 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 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 the Minimum Condition and the other conditions set forth in Annex I hereto. The Offer shall be made by means of an offer to purchase (the "Minimum ConditionOffer to Purchase"). Solely for purposes of determining whether ) subject to the Minimum Condition has been satisfiedand the ----------------- other conditions set forth in Annex I hereto and reflecting, any Shares owned by Parent or where appropriate, the other terms set forth in this Agreement. Purchaser shall be deemed to have been validly tendered not amend or waive the Minimum Condition and shall not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in decrease the Offer or to make any other changes in Price, decrease the terms and conditions number of Shares sought, change the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes propose additional conditions to the Offer in addition to those set forth in Annex A 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 period amend any other term of the Offer beyond 45 days after in any manner adverse to the date of commencement holders of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, Shares without the written consent of the Company; provided, (i) extend however, that if on the Offer if, at the initial scheduled expiration -------- ------- date of the Offer, any of which shall be twenty (20) business days after the date the Offer is commenced, all conditions to the Purchaser's obligation to purchase Shares shall Offer will not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 satisfied or waived, 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 Purchasermay, 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, extend the expiration date. The failure by Purchaser shall, on the Parent 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; provided, however, that if, immediately prior to the expiration -------- ------- date of the Offer (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer constitute less than 90% of the outstanding Shares, the Purchaser at any time may extend the Offer for a period not to exercise any of exceed five (5) business days, notwithstanding that all conditions to 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 Offer are satisfied as 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 expiration date of the Offer.
(b) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with --- respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which shall contain an offer the "Schedule 14D-l"). The Schedule 14D-1 will -------------- include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall will comply as to form in --------------- all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable Federal securities laws and, on the date filed with the SEC and on the date first published, published or sent or given to the holders of SharesCompany'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 are were made, not misleading, except that no representation is made by the Parent or the Purchaser with respect to information supplied furnished by the Company Company, in writing specifically 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 the Parent, 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 and the Company agrees Purchaser, on the one hand, and the Company, on the other hand, will promptly to (i) correct any information supplied provided by it specifically for inclusion 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, and each in light of the Parent circumstances under which they were made, not mis- leading, and the Purchaser further agrees to will take all steps necessary to cause the Schedule 14D-1 or the Offer Documents as so corrected 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 federal securities laws. The Company and its counsel shall be given the reasonable opportunity to review any Offer Documents before they are filed with the SEC. In addition, Parent and the Purchaser agree to will provide the Company and its counsel in writing with any comments the or other communications, whether written or oral, Parent, the Purchaser or their counsel may receive from time to time 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 comments or dissemination to the stockholders of the Companyother communications.
Appears in 2 contracts
Sources: Merger Agreement (Saffron Acquisition Corp), Merger Agreement (Sun Coast Industries Inc /De/)
The Offer. As promptly as practicable (a) Provided that this Agreement shall not have been terminated but in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not no event later than the first five business day days 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 execution of this Agreementhereof), the Purchaser shall, subject to shall commence (within the provisions meaning of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender offer (the "OFFER") for any and all of the outstanding shares of Common Stock, par value $.03 per share (the "SHARES"), of the Company at a price of U.S.$45.00 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") 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 (the "MINIMUM CONDITION") and to the other conditions set forth in Annex A hereto, shall consummate the Offer in accordance with its terms ("FULLY DILUTED BASIS" means issued and outstanding Shares and Shares subject to issuance under Company Option Plans (as defined in Section 2.4) and Shares subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or securities convertible or exchangeable for such capital stock). 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 properly withdrawn shall be subject only to the Minimum Condition and the rules other conditions set forth in Annex A hereto. 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 regulations promulgated thereunder and, on the date filed with conditions set forth in Annex A hereto. The Purchaser shall not amend or waive the SEC Minimum Condition and on shall not decrease the date first published, sent Offer Price or given decrease the number of Shares sought or amend any other condition of the Offer in any manner adverse 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 Shares (other than with respect to information supplied insignificant changes or amendments and subject to the penultimate sentence of this Section 1.1) without the written consent of the Company (such consent to be authorized by the Board of Directors of the Company in writing specifically for inclusion in (the "COMPANY BOARD") or a duly authorized committee thereof); PROVIDED, HOWEVER, that if on the initial scheduled expiration date of the Offer, which shall be 20 business days after the date the Offer Documents. Each of is commenced, all conditions to the ParentOffer shall not have been satisfied or waived, the Purchaser and may, from time to time, in its sole discretion, extend the Company agrees promptly to correct any information supplied by it specifically for inclusion in expiration date; PROVIDED, HOWEVER, that the Offer Documents Purchaser shall, if and to the extent that such information shall have become false or misleading in any material respectCompany, and each of the Parent and the Purchaser further agrees to take have not obtained the approvals of any Governmental Entity (as defined in Section 3.4) as required under Section 5.4, extend the expiration date for a period of the lesser of (i) 2 business days after the date that all steps necessary to cause such approvals have been obtained and (ii) 35 days after such initial scheduled expiration date. In addition, the Offer Documents as so corrected to Price may be filed with increased, and the SEC and to Offer may be disseminated to holders of Shares, in each case as and extended to the extent required by applicable Federal securities lawslaw in connection with such increase in each case without the consent of the Company. The Parent Purchaser shall, on the terms and subject to the Purchaser agree prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares validly tendered as soon as it is permitted to provide do so under applicable law; PROVIDED, HOWEVER, that if, immediately prior to the Company initial expiration date of the Offer (as it may be extended), the Shares validly tendered and its counsel in writing with any comments not withdrawn pursuant to the ParentOffer equal less than 90% of the outstanding Shares, the Purchaser or their counsel may receive from extend the SEC or its Staff with respect Offer for a period not to exceed 10 business days, notwithstanding that all conditions to the Offer Documents promptly after the receipt are satisfied as 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 initial expiration date of the CompanyOffer.
Appears in 2 contracts
Sources: Merger Agreement (Extendicare Inc /Can/), Merger Agreement (Arbor Health Care Co /De/)
The Offer. (a) Provided Subject to the provisions of this Agreement (including, without limitation, Annex A attached hereto), and provided that this Agreement shall has not have been terminated in accordance with Article IX and none of the events or conditions set forth hereof, as promptly as practicable but in Annex A shall have occurred and be existing, then, not no event later than the first five business day after execution of this Agreementdays, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer as defined in Rule 14d-1(e)(6) (the "OfferBusiness Days") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the announcement of this Agreement, Merger Sub will commence the Offer.
(i) The obligation of Merger Sub to accept for payment, purchase and pay for any Shares tendered pursuant to the rules Offer shall be subject to the satisfaction or waiver of the conditions set forth in Annex A attached hereto (the "Offer Conditions") (including the Offer Condition that at least that number of Shares equivalent to a majority of the total Shares issued and regulations promulgated thereunder andoutstanding on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition")). Merger Sub expressly reserves the right to modify the terms of the Offer and to waive any condition of the Offer, except that, Merger Sub will not, without the prior written consent of the Company (i) decrease the amount or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought in the Offer, (iii) impose additional conditions to the Offer, (iv) change any Offer Condition or amend any other term of the Offer if any such change or amendment would be materially adverse in any respect to the holders of Shares (other than Parent or Merger Sub), (v) except as provided below, extend the Offer if all of the Offer Conditions have been satisfied or (vi) amend or waive the Minimum Condition.
(ii) Subject to the terms and conditions hereof, the Offer shall expire at midnight, New York City time, on the date filed with that is twenty (20) Business Days after the SEC and Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the "Scheduled Expiration Date"); provided, however, that without the consent of the Company, Merger Sub may (x) extend the Offer, if on the Scheduled Expiration Date of the Offer any of the Offer Conditions shall not have been satisfied or waived, for one (1) or more periods (none of which shall exceed ten (10) Business Days), provided that Merger Sub may not extend the expiration of the Offer past sixty (60) days from the date first publishedof this Agreement, sent or given unless the waiting period applicable to the holders transactions contemplated by this Agreement under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of Shares1976, shall as amended (the "HSR Act"), has not contain terminated or expired in which case Merger Sub may not extend the offer past the date set forth in Section 9.2(i), or (y) extend the Offer for such period as may be required by any untrue statement of a material fact rule, regulation, interpretation or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light position of the circumstances under which they are made, not misleading, except that no representation is made by the Parent Securities and Exchange Commission ("SEC") or the Purchaser with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by staff thereof applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff with respect to the Offer Documents promptly or (z) extend the Offer for one (1) or more periods (each such period to be for not more than five (5) Business Days and such extensions to be for an aggregate period of not more than fifteen (15) Business Days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence) if on such expiration date the Offer Conditions shall have been satisfied or waived, but there shall not have been tendered that number of Shares which would equal more than ninety percent (90%) of the Shares issued and outstanding on a fully- diluted basis. Parent shall cause Merger Sub to, and agrees to use its best efforts to, consummate the Offer as soon as legally permissible, subject to Merger Sub's right to extend the Offer as provided in this Section 1.1(b)(ii).
(iii) Merger Sub agrees that if all of the Offer Conditions are not satisfied on the Scheduled Expiration Date, then, provided that all such conditions are and continue to be reasonably probable of being satisfied by the date that is forty-five (45) days after the receipt commencement of the Offer, Merger Sub shall extend the Offer for one period of not more than five (5) Business Days if requested to do so by the Company; provided that Merger Sub shall not be required to extend the Offer beyond forty-five (45) days after commencement of the Offer or, if earlier, the date of termination of this Agreement in accordance with the terms hereof.
(iv) On the terms of the Offer and subject to the satisfaction or waiver of the Offer Conditions and the terms of this Agreement, Merger Sub shall (A) be obligated to purchase all Shares validly tendered and not withdrawn on the earliest date that all of the Offer Conditions are satisfied or waived and (B) pay for 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 practicable after the expiration of the Offer. Notwithstanding any other provision of this Agreement, the Stock Option Agreement or the Shareholders Agreement, any reference to a majority of the total issued and outstanding shares or Shares, or shares or Shares outstanding on a fully diluted basis, or similar references, shall, for purposes of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment agreements, exclude from the determination thereof any shares of Common Stock issuable upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC exercise of or dissemination subject to the stockholders Stock Option Agreement and any reference to beneficial ownership of shares of Common Stock or similar references shall, for purposes of such agreements, exclude from the Companydetermination thereof any shares of Common Stock issuable upon exercise of or subject to the Stock Option Agreement and/or the Shareholders Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dupont E I De Nemours & Co)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none no event shall have occurred and no circumstance shall exist that would result in a failure to satisfy any of the events or conditions set forth in Annex A shall have occurred hereto (the "Offer Conditions," as defined in Annex A), Purchaser shall, as soon as reasonably practicable after the date hereof (and be existing, then, not later than in any event within five business days from the first business day after execution date 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementhereof), commence a tender offer (the "Offer") Offer to purchase for cash all of the outstanding shares of Common StockShares, together with the associated rights issued pursuant Rights (all references herein to Shares in the Rights context of the transactions contemplated by this Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"shall be deemed to include such Rights), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 10.75 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions this Agreement and to the Offer in addition to those set forth in Annex A 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 satisfaction or 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 period by Purchaser of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of SharesConditions. Notwithstanding the foregoing, the Purchaser mayshall not, without the prior written consent of the Company, (i) extend decrease the Offer if, at the scheduled expiration date of price per Share to be paid in the Offer, change the form of consideration payable in the Offer (other than by adding consideration) or decrease the number of Shares sought in the Offer, (ii) change or amend the Offer Conditions (other than to waive any condition, except that the Minimum Condition (as defined in Annex A) may not be waived without the consent of the Company), (iii) impose additional conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, Offer or (iiiv) 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 date and time, as may be extended in accordance with the terms hereof, is referred to as the "Expiration Date"); provided, -------- however, that if, on the Expiration Date, the Offer Conditions have not been ------- satisfied or waived, Purchaser shall have the right, in its sole discretion, to extend the Offer for a period one or more periods not to exceed an aggregate of not more than 15 thirty business days beyond days; provided further that if all of the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of such extension, more than two-thirds but Offer Conditions have been ---------------- satisfied or waived and less than 90 percent 90% of the outstanding Shares have been validly tendered in the Offer and not properly withdrawn pursuant 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 periods not to exceed an aggregate of twenty business days; and provided further that in no event shall the Expiration Date be ---------------- extended beyond February 28, 1999 (the "Outside Date") without the consent of the Company. The Offer Conditions shall be for the benefit of Purchaser and, except with respect 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 PurchaserMinimum Condition, 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.
(b) As promptly soon as reasonably practicable following after the date hereof (and in any event within five business days from the date of public announcement of the execution of this Agreementhereof), the Parent and the 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 with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on ). The Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase (together with all amendments and supplements thereto collectively the "Offer to Purchase"), form of the related letter of transmittal transmittal, together with all amendments and supplements thereto (collectively the "Letter of Transmittal"), and the form of summary advertisement (such which Schedule 14D-1 14D-1, Offer to Purchase, Letter of Transmittal and the documents therein pursuant to which the Offer will be madeother documents, together 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 review the Offer Documents shall comply as to form 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 promulgated thereunder andand all other applicable laws, on the date filed with the SEC and on the date first published, sent or given to the holders of Shares, shall will not contain any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements thereincontained therein not misleading; provided, however, that the -------- ------- representations and warranties in light 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 circumstances under which they are made, not misleading, except that no representation is made Company. Parent and Purchaser shall promptly provide to the Company a copy of any written comments received by them from the Parent or the Purchaser SEC with respect to information supplied by the Company in writing specifically for inclusion in the Offer Documents. Each of the Parent, the Parent and Purchaser and the Company agrees shall promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the Offer Documents (other than the Schedule 14D-1), 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 Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Steel of West Virginia Inc), Merger Agreement (Swva Acquisition Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 7.1 and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex A hereto shall have occurred and be continuing (and shall not have been satisfied or waived by Purchaser or Merger Sub), Merger Sub shall commence (within the Purchasermeaning of Rule 14d-2 under the Securities Exchange Act of 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 “Initial Expiration Date”). The obligation of the Purchaser Merger Sub to accept for payment, purchase payment and to pay for any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"as it may be extended in accordance with requirements of this Section 1.1(a). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser ) shall be deemed subject only to have been 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 expiration of the Offer (x) that number of shares of Common Stock which, together with any shares of Common Stock then owned by Purchaser 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 (y) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Convertible Preferred Stock which, together with any shares of Convertible Preferred Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement the Stockholders Agreement), represents 100% of the Convertible Preferred Stock outstanding (clauses (x) and (y) together, the “Minimum Condition”); and (ii) the other conditions set forth in Annex A hereto. 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 price per Share payable in either or both of the Offer or Prices and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, thatthat Merger Sub shall not, unless previously approved by and Purchaser shall cause Merger Sub not to, decrease either of the Company in writingOffer Prices, no change may be made which decreases the price per Share form of consideration payable in the Offer, which changes decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased sought in the Offeroffer, which imposes impose additional conditions to the Offer in addition to those set forth in Annex A 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, extend the Offer beyond the Initial Expiration Date except as hereinafter set forth in this Subsection 1.01(a)below, extends the period or amend any other condition of the Offer beyond 45 days after in any manner adverse to the date of commencement holders of the OfferShares, or which otherwise amends in each case without the terms prior written consent of the Offer Company (including any such consent to be authorized by the Company Board of the conditions set forth in Annex A) in Directors or a manner that is materially adverse to holders of Sharesduly authorized committee thereof). Notwithstanding the foregoing, the Purchaser Merger Sub may, without the consent of the Company, (i) extend the Offer if, at the any scheduled expiration date of the Offer, Offer any of the conditions to the Purchaser's Merger Sub’s obligation to purchase accept Shares for payment shall not be satisfied until or waived, extend the Offer beyond the Initial Expiration Date for a time period reasonably necessary to permit such time as such conditions are condition to be satisfied, or (ii) extend the Offer for a any period required by any rule, regulation or interpretation of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause United States Securities and Exchange Commission (i) of this sentence if“SEC”), on or the date of such extensionstaff thereof, more than two-thirds but less than 90 percent of Shares have been validly tendered and not properly withdrawn pursuant applicable to the Offer. It is agreed that Merger Sub may, without the conditions set forth in Annex A are for the sole benefit consent of the Parent Company, extend the Offer in accordance with Rule 14d-11 under the Exchange Act. In addition, either or both of the Offer Prices may be increased and the Purchaser and Offer may be asserted extended to the extent required by law in connection with such increase, in each case without the Parent or the Purchaser regardless consent 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 OfferCompany.
(b) As promptly as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Merger Sub shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall contain or incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and summary advertisement all other ancillary Offer documents (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any all amendments and supplements or amendments thereto, the "“Offer Documents"”). The Purchaser and Merger Sub shall cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit the Shares as and to state any material fact the extent 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 Documentsapplicable federal securities laws. Each of the Parent, the Purchaser and Merger Sub, on the Company agrees one hand, and the Company, on the other hand, will promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent and the Purchaser further agrees to take all steps necessary to Merger Sub will cause the Offer Documents as so corrected 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 federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents Schedule TO before it is filed with the SEC. In addition, Purchaser and all amendments Merger Sub agree to provide the Company and supplements thereto prior its counsel with any comments, whether written or oral, that Purchaser or Merger Sub or their counsel may receive from time to their filing with time from the SEC or dissemination its staff with respect to the stockholders 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 CompanyState 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 this Agreement shall not have been terminated in accordance with Article IX VII and none of the events or conditions set forth in Annex ANNEX A hereto shall have occurred and or be existing, thenPurchaser shall, not and Parent shall cause Purchaser to, as promptly as practicable after the date hereof (but in no event later than the first tenth 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 execution terms of this Agreement, the Purchaser shall, subject to the provisions of this Agreement), commence a tender (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), an offer (the "OfferOFFER") for to purchase any and all of the outstanding shares of Company Common Stock, together with the Stock (and associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares"Rights) at a price of Twenty-One United States Dollars ($10.50 21.00) per Shareshare and associated Right (the "OFFER PRICE"), net to the seller in cash, subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn Offer will be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the Offer at the earliest time following terms and conditions set forth in this Agreement. The initial expiration date of the Offer that all conditions to shall be the twentieth business day from and after the date the Offer set forth in Annex A hereto shall have been satisfied or waived by is commenced (the Purchaser"INITIAL EXPIRATION DATE"). The obligation of the Purchaser to accept for payment, purchase and pay for Shares any shares of Company Common Stock (and associated Rights) tendered pursuant to the Offer shall be subject subject, except as provided in Section 1.1(b), only to the conditions set forth in Annex A hereto, including satisfaction of (i) the condition that a number of Shares shares of Company Common Stock representing not less than a majority fifty-one percent (51%) of the Shares total issued and outstanding shares of Company Common Stock on a fully fully-diluted basis shall (after giving effect to the conversion or exercise of all outstanding options, warrants and other rights or securities convertible into shares of Company Common Stock) (excluding any shares of Company Common Stock held by the Company or any of its Subsidiaries) on the date such shares are purchased pursuant to the Offer have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum ConditionMINIMUM CONDITION"). Solely for purposes of determining whether ) and (ii) the Minimum Condition has been satisfiedother conditions set forth in ANNEX A hereto; PROVIDED, any Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The HOWEVER, that Purchaser expressly reserves the right to increase waive any of the conditions to the Offer (other than the Minimum Condition) and to make any change in the terms or conditions of the Offer in its sole discretion, subject to Section 1.1(b).
(b) Without the prior written consent of the Company, neither Parent nor Purchaser will (i) decrease the price per Share payable in the Offer or to make any other changes in the terms and conditions share of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share Common Stock payable in the Offer, which changes (ii) decrease the number of shares of Company Common Stock sought in the Offer, (iii) change the form of consideration to be paid payable in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes (iv) impose conditions to the Offer in addition to those set forth in Annex A heretoANNEX A, 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, (v) except as hereinafter set forth in this Subsection 1.01(a)provided below or required by any rule, extends the period regulation, interpretation or position of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) otherwise amend or change any term or condition of the Offer in a manner adverse to the holders of shares of Company Common Stock. Notwithstanding anything in this Agreement to the contrary, without the consent of the Company, Purchaser shall have the right to extend the Offer beyond the Initial Expiration Date in the following events: (i) from time to time if, at the Initial Expiration Date (or extended expiration date of the Offer, if applicable), any of the conditions to the Offer (other than the Minimum Condition to which this clause does not apply) shall not have been satisfied or waived, until such conditions are satisfied or waived; (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law; (iii) if all conditions to the Offer (other than the Minimum Condition) are satisfied or waived, but the Minimum Condition has not been satisfied, for one or more periods not to exceed thirty (30) business days (for all such extensions); or (iv) if all of the conditions to the Offer are satisfied or waived but the number of shares of Company Common Stock validly tendered and not withdrawn is less than ninety percent (90%) of the then outstanding number of shares of Company Common Stock on a fully diluted basis, for an aggregate period not to exceed twenty (20) business days (for all such extensions), PROVIDED that Purchaser shall accept and promptly pay for all securities tendered prior to the date of such extension and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with each such extension. In addition, Parent and Purchaser agree that Purchaser shall from time to time extend the Offer, if requested by the Company, (i) if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), any of the conditions to the Offer other than (or in addition to) the Minimum Condition shall not have been waived or satisfied, until (taking into account all such extensions) the earlier of June 30, 2000 or such earlier date upon which any such condition (other than the Minimum Condition) shall not be reasonably capable of being satisfied prior to June 30, 2000; or (ii) if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), all of the conditions to the Offer other than the Minimum Condition shall have been waived or satisfied and the Minimum Condition shall not have been satisfied, until the earlier of ten (10) business days after such expiration date or June 30, 2000. Upon the prior satisfaction or waiver of all the conditions to the Offer, and subject to the terms and conditions of this Agreement, Purchaser will, and Parent will cause Purchaser to, accept for payment, purchase and pay for, in accordance with the terms of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as reasonably practicable after the expiration of the Offer.
(c) As soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with any amendments or supplements thereto, the "SCHEDULE TO") with respect to the Offer, which shall . The Schedule TO will comply as to form and content in all material respects with the applicable provisions of the federal securities laws and will contain an the offer to purchase and form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company each agrees promptly to correct promptly any information supplied provided by it specifically for inclusion use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect and to supplement the information provided by it specifically for use in the Schedule TO or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, and each in light of the circumstances under which they were made, not misleading. Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents as so corrected or supplemented to be filed with the SEC and to be disseminated to holders of Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination SEC. Parent and Purchaser agree to provide to the stockholders Company and its counsel any comments or other communications which Parent, Purchaser or their counsel may receive from the Staff of the CompanySEC with respect to the Offer Documents promptly after receipt thereof.
Appears in 2 contracts
Sources: Merger Agreement (International Paper Co /New/), Merger Agreement (Shorewood Packaging Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1 and none no event shall have occurred and no circumstance shall exist which would result in a failure to satisfy any of the conditions or events or conditions set forth in Annex A shall have occurred hereto (the "Offer Conditions"), Purchaser shall, as soon as reasonably practicable after the date hereof (and be existing, then, not later than in any event within five business days from the first business day after execution date 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementhereof), commence a tender an offer (the "Offer") to purchase for cash all of the issued and outstanding shares of Common Stock, together with the associated rights issued pursuant par value $.14 2/3 per share (referred to the Rights Agreement dated herein as of December 5, 1992, as amended (either the "Shares" or "Company Rights AgreementCommon Stock"), between of the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 80.00 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date satisfaction or waiver by Purchaser of the Offer (the "Minimum Condition")Conditions. 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right right, in its sole discretion, to increase waive any such condition (other than the price per Share payable Minimum Condition as defined in the Offer or to Conditions) and make any other changes in the terms and or conditions of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid payable in the OfferOffer (other than by adding consideration), which reduces the maximum number of Shares to be purchased in the Offer, which imposes modify or amend the Offer Conditions or otherwise amend the Offer in a manner adverse to holders of the Shares. Purchaser covenants and agrees that, subject to the terms and conditions of this Agreement, including but not limited to the Offer in addition to those set forth in Annex A heretoConditions, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition to the acceptance it will accept for payment and payment pay for shares Shares as soon as it is permitted to do so under applicable law; provided that, Purchaser shall have the right, in the Offerits sole discretion, 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 period of extend the Offer beyond 45 days after for up to five business days, notwithstanding the date of commencement prior satisfaction of the Offer, or which otherwise amends in order to attempt to satisfy the terms requirements of Section 253 of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 OfferDGCL. It is agreed that the conditions set forth in Annex A Offer Conditions 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 except for any action or inaction by the Purchaser, unless any such action Purchaser or inaction by the Purchaser would constitute Parent constituting a breach by the Purchaser of any of its covenants under this Agreement) or or, except with respect to the Minimum Condition, 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 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 extend the Offer until the earlier of (1) such time as such conditions are satisfied or waived, and (2) the date chosen by the Parent or the Purchaser at any time to exercise any of the foregoing rights Company which shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right later than (x) the Outside Date (as defined herein), (y) the earliest date on 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 reasonably believes such condition will be tendered 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 OfferMinimum Condition are still the only Offer Condition not satisfied unless this Agreement has been terminated pursuant to the provisions of Article VIII.
(b) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on ). The Schedule 14D-1 with respect to the Offer, which shall contain an offer Offer to purchase Purchase and forms of the related letter of transmittal (which Schedule 14D-1, Offer to Purchase and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madeother documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Offer Documents Parent and Purchaser agree that the Company and its counsel shall comply as be given an opportunity to form in all material respects with review 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 Schedule 14D-1 before it is filed with the SEC and on 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 DocumentsSEC. Each of the Parent, the Purchaser and the Company each agrees promptly to correct any information supplied provided by it specifically for inclusion use 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 the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents Schedule 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 federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Dillard Department Stores Inc), Merger Agreement (Mercantile Stores Co Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.1, as promptly as practicable (and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 any event within 10 Business Days) after the date hereof, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the public announcement Securities Exchange Act of 1934, as amended, and the execution of this Agreementrules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all Shares at the Offer Price; provided, that Merger Sub shall not be required to commence, or cause to be commenced, the Purchaser shall, subject Offer prior to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between date on which the Company and First Interstate Bank is prepared to filed the Schedule 14D-9.
(b) The obligation of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net Merger Sub to the seller in cash. The Purchaser shall accept for payment and pay for all any Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not withdrawn prior to any then scheduled Expiration Time that number of Shares which, together with the Shares then beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Shares then outstanding (determined on a fully diluted basis, which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof; provided, however, it will not include the Company’s 2012 Notes or the 2017 Notes) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the HSR Condition and the other conditions set forth in Annex A heretoI (together with the Minimum Condition, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior “Offer Conditions”). Subject to the expiration date prior satisfaction of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfiedand the satisfaction, any Shares owned or waiver by Parent or Purchaser Merger Sub, of the other Offer Conditions, Merger Sub shall be deemed to have been (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as promptly as possible after Merger Sub is legally permitted to do so after the Expiration Time. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions set forth in this Agreement and the Offer. The Purchaser acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer Conditions and otherwise on the terms and subject to the conditions set forth in this Agreement is referred to herein as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to herein as the “Offer Closing Date.”
(c) 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 Offer Conditions. Parent and Merger Sub expressly reserves reserve the right (in their sole discretion) 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, or to waive, in whole or in part, any of the Offer Conditions; PROVIDEDprovided, HOWEVERhowever, that, that unless otherwise provided by this Agreement or as previously approved in writing by the Company in writingCompany, no Merger Sub shall not (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes (iii) reduce the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes (iv) amend or modify any of the Offer Conditions or impose conditions to the Offer that are different than or in addition to those set forth in Annex A heretothe Offer Conditions, 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 (v) amend or waive the Minimum Condition if such waiver would result in less than a majority Condition, (vi) amend or modify any 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfiedis, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise could reasonably be permitted under clause (i) of this sentence ifexpected to be, 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on the date first published, sent or given adverse to the holders of Shares, or (vii) extend or otherwise change the Expiration Time in a manner other than pursuant to and in accordance with this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall not contain any untrue statement expire at midnight (New York City time) on the date that is 20 Business Days following the commencement (within the meaning of a material fact or omit to state any material fact required to be stated therein or necessary in order to make Rule 14d-2 under the statements thereinExchange Act) of the Offer (the “Initial Expiration Time”) or, in light of the circumstances under event the Initial Expiration Time has been extended pursuant to and in accordance with this Agreement, the date to 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 has been so extended (the ParentInitial Expiration Time, or such later time to which the Purchaser Initial Expiration Time has been extended pursuant to and in accordance with this Agreement, is referred to as the Company agrees promptly to correct any information supplied by it specifically for inclusion in the “Expiration Time”).
(e) 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity extended from time 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.time as follows:
Appears in 2 contracts
Sources: Merger Agreement (International Coal Group, Inc.), Merger Agreement (Arch Coal Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 9.01 below and none of the events or conditions set forth in clauses (a) through (i) of Annex A hereto shall have occurred and be existingcontinuing to exist, thenPurchaser shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof, not but in no event later than 10 business days after the first business day after execution of this Agreement, the Parent shall issue a initial public announcement of the execution and delivery of this Agreement, and not later than the fifth business day after the . The initial expiration date of the public announcement Offer shall be 20 business days after the commencement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including condition (the condition "Minimum Condition") that a at least the number of Shares representing not less than a majority that shall constitute fifty and six-tenths percent (50.6%) of the then outstanding Shares on a fully diluted basis Fully Diluted Basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer (the "Minimum Condition"). Solely for purposes of determining whether the Minimum Condition has been satisfied, any Shares owned by Parent or Purchaser and also shall be deemed to have been validly tendered and not withdrawn pursuant subject to the Offersatisfaction of each of the other conditions set forth in Annex A hereto. The Purchaser expressly reserves the right to waive any such condition other than the Minimum Condition, to increase the cash price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by that without the Company in writingCompany's prior written consent, no change may be made which decreases the cash price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, Offer or which reduces the maximum number of Shares to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to those set forth in Annex A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, hereto or which otherwise amends adversely affects the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at from time to time for the scheduled expiration date shortest time periods which the Purchaser reasonably believes are necessary until the consummation of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"), or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 15 10 business days beyond the latest expiration applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if, as 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 such extensionthe Offer, more than twothe sole condition(s) remaining unsatisfied are (i) the failure of the waiting period under the Hart-▇▇▇▇▇-thirds but less than 90 percent ▇▇▇▇▇▇ ▇▇▇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 under the Arms Regulations shall not have expired or been terminated then, Purchaser shall extend the Offer from time to time until 11 7 the earlier to occur of (i) January 31, 2001 and (ii) the fifth business day after the latest to occur of (A) 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 (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 Shares have been validly tendered and not properly withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. It is agreed that Notwithstanding the conditions set forth in Annex A are for immediately preceding sentence and subject to the sole benefit applicable rules of the Parent SEC and the Purchaser terms and may be asserted by the Parent or the Purchaser regardless conditions of the circumstances giving rise Offer, Purchaser expressly reserves the right 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, delay payment for Shares in order to comply in whole or in part at any time and from time to time, in its sole discretionwith applicable laws. 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 Any such right and each such right delay 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 effected in compliance with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditionsRule 14e-1(c) shall be final and binding on the parties. The Company agrees that no Shares held by the Company will be tendered in the Offer.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and . If the rules and regulations promulgated thereunder and, 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 date filed with the SEC and on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 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.
Appears in 2 contracts
Sources: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX 8, and none that no event shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the events or conditions set forth in Annex A shall have occurred and be existingA, then, not no later than the first business day after execution of this Agreement5:30 p.m. Eastern Daylight Savings time on July 28, the 2009, Parent shall issue a public announcement of the execution of this Agreementcause Merger Sub to commence, and not later than Merger Sub shall commence (within the fifth business day after meaning of Rule 14d-2 under the date Securities Exchange Act of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights Agreement"“Exchange Act”)), between the Company 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 First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser Merger Sub shall accept for payment and pay for payment, all Shares which have been validly tendered and not withdrawn pursuant to the Offer at as soon as practicable following the earliest time following expiration of Expiration Date. Notwithstanding the Offer that all conditions to above, the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser Merger Sub to accept for payment, purchase 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 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 (the “Minimum Condition”), and (y) to the other conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. A. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 Merger Sub and may be asserted by the Parent or the Purchaser Merger Sub regardless of the circumstances giving rise to any such condition (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 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) giving rise to such condition or may be waived by the Parent or the PurchaserMerger 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 and to waive any condition of the Offer, except the Minimum Condition; provided that, Merger Sub, at its sole discretionoption, may waive such Minimum Condition (i) if the number of Shares validly tendered and not withdrawn shall be at least 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 subject to Support Agreements or (ii) with the prior written consent of the Company. The failure by the of Parent or the Purchaser 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 which that may be asserted at any time and from time to time. Any determination by Without the Parent or the Purchaser with respect to any prior written consent of the foregoing 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 sought to be purchased in the Offer, impose additional conditions (including, without limitation, to the satisfaction of such conditions) Offer or reduce the time period during which the Offer shall be final and binding on the partiesremain open. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in the Offer.
(b) As promptly as reasonably practicable following execution On the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Merger Sub shall (i) file or cause to be filed with the Securities SEC a combined Schedule 13E-3 and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto, which shall contain an offer to purchase the “Schedule TO”) and related Offer to Purchase, form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents therein and instruments pursuant to which the Offer will be mademade (collectively, together with and including any supplements or amendments thereto, the "“Offer Documents"). The ”) and (ii) cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, Shares as and to the extent required by applicable Law. The Company shall not contain any untrue statement of a material fact promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities Laws 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 reasonably requested by the Parent or the Purchaser with respect to information supplied by the Company in writing specifically Merger Sub for inclusion in the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of all material 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 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 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 ▇▇▇▇▇▇▇ & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of the Parent, the Purchaser Merger Sub and the Company agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the respect or as otherwise required by applicable Law. Parent and the Purchaser further agrees to take all steps necessary Merger Sub shall use their reasonable best efforts to cause the Offer Documents Schedule TO as so corrected corrected, to be filed with the SEC and the 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 federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and all amendments Parent and supplements thereto prior Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide 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, Merger Sub or their filing with counsel may receive from time to time from the SEC or dissemination its staff with respect to the stockholders 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 period 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 this Agreement shall not have been terminated As promptly as practicable (but in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, not no event later than the first five 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 days following the public announcement of the execution hereof), Purchaser shall commence (within the meaning of this Agreement, Rule 14d-2 under the Purchaser shall, subject to the provisions Securities Exchange Act of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (the "Company Rights AgreementExchange Act")), between an offer to purchase all of the Company and First Interstate Bank Company's outstanding shares of Californiacommon stock, as Rights Agent par value $0.10 per share (collectively, the "Shares") ), at a price of $10.50 2.00 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to cash (as such offer may be amended in accordance with the Offer at terms of this Agreement, 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 the Purchaser to accept for payment"Offer"), purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto. Purchaser will not, including without the condition that a prior written consent of the Company, (i) decrease or change the form of the consideration payable in the Offer, (ii) decrease the number of Shares representing not less than a majority sought pursuant to the Offer, (iii) impose additional conditions to the Offer, (iv) change the conditions to the Offer, except that Parent in its sole discretion may waive any of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior conditions to the expiration date Offer other than the condition set forth in clause (1) of Annex A, which may not be waived without the Company's prior written consent, or (v) make any other change in the terms or conditions of the Offer (that is adverse to the "Minimum Condition")holders of Shares. Solely Purchaser will, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer, accept for purposes of determining whether the Minimum Condition has been satisfied, any payment and pay for all Shares owned by Parent or Purchaser shall be deemed to have been validly tendered and not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions promptly after expiration of the Offer; PROVIDED, HOWEVER, provided that, unless previously approved by Purchaser may extend the Company in writing, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes conditions Offer up to the Offer in addition to those set forth in Annex A 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 period of the Offer beyond 45 days tenth business day after the date later of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled initial expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or Offer and (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on the date of on which all such extension, more than two-thirds but less than 90 percent of Shares conditions shall first 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 satisfied 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 partieswaived. The Company agrees that no Shares held by the Company will be tendered in to Parent pursuant to the Offer; provided, that Shares held beneficially or of record by any 6 plan, program or arrangement sponsored or maintained for the benefit of employees of the Company shall not be deemed to be held by the Company, regardless of whether the Company has, directly or indirectly, the power to vote or control the disposition of such Shares. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to the conditions set forth in Annex A hereto.
(b) As promptly as reasonably practicable following execution On the date of this Agreementcommencement of the Offer, the Parent and the Purchaser shall file or cause to be filed with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 (together with all amendments thereto, the "Schedule 14D-1") with respect to the Offer, which shall contain an the offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 other ancillary offer documents and the documents therein instruments pursuant to which the Offer will be mademade (collectively, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Purchaser will disseminate the Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees will promptly to correct any information supplied provided by it specifically for inclusion use in the Offer Documents if and to the extent that such information shall have become becomes false or misleading in any material respect, respect and each of the Parent and the Purchaser further agrees to will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentslaw. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC. Parent and Purchaser agree to provide the Company with any comments that may be received from the SEC or dissemination its staff with respect to the stockholders of Offer Documents promptly after receipt thereof and to further provide the CompanyCompany with a reasonable opportunity to participate in all substantive communications with the SEC and its staff relating to the Offer Documents, the Offer or the transactions contemplated thereby.
Appears in 2 contracts
Sources: Merger Agreement (Seneca West Corp), Merger Agreement (Harcor Energy Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A I to this Agreement shall have occurred and be existingoccurred, thenthe Purchaser (or one or more other direct or indirect wholly-owned subsidiaries of Parent) shall, not later than the first one business day after execution of this Agreement, publicly announce the Parent shall issue a public announcement of the transactions contemplated hereby, and not later than five business days after execution of this Agreement, and not later than commence (within the fifth business day after the date meaning of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted Rule 14d-2 under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer to purchase all Shares at a price of $24.00 per Share, net to the seller in cash (the "Offer," which term shall include any amendments to such Offer not prohibited by this Agreement) and, subject to a minimum of not less than a majority of the outstanding Shares (on a fully-diluted basis) being validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition") and the rules further conditions set forth in Annex I of this Agreement, shall consummate the Offer. The Offer shall be made by means of an offer to purchase containing the Minimum Condition and regulations promulgated thereunder and, on the date filed further conditions set forth in Annex I. The Purchaser hereby covenants and agrees that it shall hold the Offer open for no less than 25 business days. Simultaneously with the SEC and on 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 commencement 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 ParentOffer, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed file with the SEC Securities and to be disseminated to holders of Shares, in each case as and to Exchange Commission (the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, the Purchaser or their counsel may receive from the SEC or its Staff "Commission") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer Documents promptly after (the receipt "Schedule 14D-1"). Notwithstanding the foregoing, in the event any of the conditions set forth in Annex I to this Agreement shall have occurred, the Purchaser may terminate the Offer. In the event the Purchaser terminates the Offer, it may, subject to the prior written approval of the Board of Directors of the Company, seek the approval of the Company's stockholders for the Merger pursuant to the applicable provisions of the General Corporation Law of the State of Delaware, as amended ("Delaware Law"), as provided in Section 6.11. In such comments. event, the Company shall take all necessary action to call a special meeting of its stockholders to seek such approval, and to prepare and file with the Commission a proxy statement relating to such special meeting, all in accordance with Sections 6.1 and 6.2 hereof.
(b) The Company Purchaser expressly reserves the right to modify the terms and its counsel shall be given a reasonable opportunity to review and comment upon conditions of the Offer Documents and all amendments and supplements thereto from time to time, except that, without the prior written approval of the Company, the Purchaser shall not amend the Offer (i) to their filing with reduce the SEC or dissemination 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 as a condition to the Offer, (v) to waive the Minimum Condition if such waiver would result in less than a majority of the outstanding Shares being accepted for payment or paid for pursuant to the Offer, (vi) to impose additional conditions to the Offer, (vii) to extend the period of the Offer beyond 60 days, except that the Offer may be extended beyond 60 days (subject to the Company's right of termination in Section 8.1 herein), without the prior written approval of the Company, if all required waiting periods under applicable law have not expired or (viii) otherwise to amend the terms of the Offer (including the conditions set forth in Annex I) in a manner that is materially adverse to stockholders of the Company.
Appears in 2 contracts
Sources: Merger Agreement (WDR Acquisition Corp), Merger Agreement (Wonderware Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and So long as none of the events or conditions set forth in clauses (a) through (g) of Annex A I hereto shall have occurred and be existing, 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 execution of this Agreementor exist, the Purchaser shall, subject to and Parent shall cause the provisions of this AgreementPurchaser to, commence a tender offer (within the "Offer"meaning of Rule 14d-2(a) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as 2 promptly as practicable after the date hereof, but in any event not later than December 18, 1997, the Offer for any and all outstanding Shares not owned by the Purchaser at the Offer Price applicable to such Shares, net to the seller in 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 "Initial Expiration Date"). As promptly as practicable, the Purchaser shall file with the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1" and together with the documents therein pursuant to which the Offer will be made, and with any supplements or amendments thereto, the rules and regulations promulgated thereunder and"Offer Documents"), on which shall contain (as an exhibit thereto) the date filed with Purchaser's Offer to Purchase (the SEC and on the date first published, sent or given "Offer to Purchase") which shall be mailed 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 Shares with respect to information supplied by the Company in writing specifically for inclusion in the Offer DocumentsOffer. Each The obligation of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary accept for payment or pay for any Shares tendered pursuant to cause the Offer Documents as so corrected will be subject only to the satisfaction or waiver of the conditions set forth in Annex I hereto. Without the prior written consent of 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 filed with purchased in the Offer (except as otherwise set forth in Section 1.01(b) hereof), (iii) change the conditions set forth in Annex I, (iv) extend the expiration date of the Offer (except as required by applicable rules and regulations of the SEC and except that Purchaser may in its discretion extend the expiration date of the Offer for up to be disseminated 10 business days after the Initial Expiration Date, and may extend the Offer thereafter for longer periods (not to holders exceed 90 calendar days from the date of Sharescommencement (unless, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide Company's sole discretion, the Company and its counsel in writing with any comments requests that the Parentexpiration date of the Offer be further extended, the Purchaser or their counsel may receive up to a maximum of 120 calendar days) from the SEC or its Staff with respect date of commencement in the event that any condition 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 is not satisfied or dissemination to the stockholders of the Company.waived)
Appears in 2 contracts
Sources: Merger Agreement (Impact Systems Inc /Ca/), Merger Agreement (Voith Sulzer Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A nothing shall have occurred and be existing, then, not later than that would result in the first business day after execution failure of this Agreement, the Parent shall issue a public announcement any of the execution of this Agreement, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A I hereto, including Parent and Purchaser shall, as promptly as practicable following the date hereof and in any event not later than March 20, 1998, commence their Offer to purchase the Shares at a price equal to the Purchase Price. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase" and, together with a letter of transmittal relating thereto, the "Offer Documents") which shall be subject solely to the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been there be validly tendered and not withdrawn prior to the expiration date of the Offer that number of Shares which, when added to any Shares acquired pursuant to the Stock Purchase Agreements simultaneously with the acceptance of Shares pursuant to the Offer, represents at least a majority of the Shares outstanding on a fully diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex I hereto (including the expiration of applicable waiting periods under the HSR Act (as hereinafter defined)). Solely for For purposes of determining whether the Minimum Condition has been satisfiedthis Agreement, any "fully diluted basis" means issued and outstanding Shares owned by and Shares subject to issuance under outstanding Options (as defined below). As soon as practicable, Parent or and Purchaser shall be deemed file with the Securities and Exchange Commission (the "SEC") a Schedule 14D-1 (which schedule, together with all amendments and supplements thereto, is hereinafter referred to have been validly tendered and not withdrawn pursuant as the "Schedule 14D-1") with respect to the Offer. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 (as defined below) before it is filed with the SEC. In addition, Parent and Purchaser expressly reserves agree to provide the right Company and its counsel with any comments, whether written or oral, that Parent and/or its counsel may receive from time to increase time from the SEC or its staff with respect to the Schedule 14D-1 promptly after the receipt of such comments or other communications. Without the prior written consent of the Company, neither Parent nor Purchaser shall decrease the price per Share payable in or change the Offer or to make any other changes in the terms and conditions form of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made which decreases the price per Share consideration payable in the Offer, which changes decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of change the conditions set forth in Annex A) I, impose additional conditions to the Offer or amend any other term of the Offer in a any manner that is materially adverse to the holders of the Shares. 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 any expiration date of the Offer, Parent and/or Purchaser will accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer ifon one or more occasions for up to ten business days for each such extension beyond the then scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then scheduled expiration date of the Offer, Offer any of the conditions to the Purchaser's obligation to purchase accept for payment and pay for the Shares shall not be satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (ii) increase the Purchase Price and extend the Offer for any period required by any rule, regulation, interpretation or provision of the SEC or the staff thereof applicable to the Offer and (iii) extend the Offer for a an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares if there shall not 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 Offer at least 90% 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 Offeroutstanding Shares.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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 Parent and Purchaser, on the Parentone hand, the Purchaser and the Company Company, on the other hand, agrees promptly to correct promptly any information supplied provided by it specifically for inclusion 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 the Parent and the Purchaser further agrees agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Metromail Corp), Merger Agreement (Great Universal Acquisition Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01, 8.02, 8.03 or 8.04 and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 occurred or waived by be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of the Purchaser to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including satisfaction of (i) the condition (the "Minimum Condition") that a at least the number of Shares representing not less than that when added to the Shares already owned by Parent shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights) shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (ii) the "Minimum Condition")other conditions set forth in Annex A hereto. 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share payable in the Offer or Amount and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writingPurchaser will not (i) decrease the Per Share Amount, no change may be made which decreases (ii) reduce the price per Share payable number of Shares sought in the Offer, which changes (iii) add to the conditions to the Offer set forth in Annex A hereto, (iv) change the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased Offer or (v) make any other change in the Offer, which imposes conditions to the Offer in addition to those set forth in Annex A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to each seller in cash, upon the terms and subject to the conditions of the Offer. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, Purchaser shall have the right to extend the Offer (but in no event later than the Termination Date)
(i) extend the Offer from time to time if, at the scheduled or extended expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be have been satisfied or waived, until such time as such conditions are satisfiedsatisfied or waived, or (ii) extend for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law and (iii) on one or more occasions for a an aggregate period of not more than 15 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence sentence, if, on such expiration date, the date number of such extensionShares tendered (and not withdrawn) pursuant to the Offer, together with the Shares then owned by Parent, represents more than two-thirds 80% but less than 90 percent 90% of the outstanding Shares on a fully-diluted basis. If all of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, subject to Section 8.04(b), Purchaser shall extend the Offer from time to time until such conditions are satisfied or waived. Upon the terms and subject to the conditions of the Offer, Purchaser shall accept for payment Shares that have been validly tendered and not properly withdrawn pursuant to the OfferOffer at the earliest time that all conditions to the Offer shall have been satisfied or waived by Purchaser. It is agreed that Subject to the terms and 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 Offer (including, without limitation, the satisfaction Minimum Condition), Purchaser shall pay, as promptly as practicable after expiration 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, for all Shares validly tendered and not withdrawn.
(b) As promptly soon as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 14D-1, including all exhibits thereto (together with all amendments and supplements thereto, the "Schedule 14D-1"), with respect to the Offer, which . The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the related form of letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees shall correct promptly to correct any information supplied provided by it specifically any of them for inclusion 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 each of the Parent and the Purchaser further agrees to shall take all steps necessary to cause the Offer Documents Schedule 14D-1, 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 laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsLaw. The Company and its counsel shall be given a reasonable an opportunity to review and comment upon on the Offer Documents (and all any amendments and supplements thereto thereto) prior to their filing being filed with the SEC or dissemination disseminated to the stockholders holders of Shares. Parent and Purchaser shall provide the CompanyCompany and its counsel with any comments or other communications, whether written or oral, that Parent, 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 comments or other communications.
Appears in 2 contracts
Sources: Merger Agreement (Unisource Worldwide Inc), Merger Agreement (Georgia Pacific Corp)
The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Article IX and none a failure to satisfy any of the events or conditions set forth in Annex A shall have occurred and be existingI hereto, thenMerger Subsidiary shall, 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 as promptly as practicable after the date of hereof, but in no event later than five business days following the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions terms of this Agreement, commence a tender an offer (the "Offer") for to purchase all of the outstanding shares of Common Stockcommon stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended par value $.01 per share (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") ), of the Company at a price of $10.50 28.00 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority there shall be validly tendered in accordance with the terms of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "Fully Diluted Shares") (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 not withdrawn pursuant to the Offerother conditions set forth in Annex I hereto. The Purchaser Parent and Merger Subsidiary expressly reserves reserve the right to increase waive the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and or conditions of the Offer; PROVIDED, HOWEVER, PROVIDED that, unless previously approved by without the Company in writingwritten consent of the Company, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought 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 A heretoI, which broadens changes or waives the scope of such conditionsMinimum Condition, which increases extends the minimum number of Shares which must be tendered Offer (except as a set forth in the following sentence), or makes any other change to any 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 Offer set forth in this Subsection 1.01(a), extends Annex I which is materially adverse to the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends Shares. Subject to the terms of the Offer in this Agreement and the satisfaction (including any or waiver to the extent permitted by this Agreement) of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingOffer, Merger Subsidiary shall accept for payment all Shares validly tendered and not withdrawn pursuant to the Purchaser may, without Offer as soon as practicable after the consent applicable expiration date of the Company, (i) Offer and shall pay for all such Shares promptly after acceptance; PROVIDED that Merger Subsidiary may extend the Offer if, at the scheduled expiration date of the Offer, Offer or any extension thereof any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be satisfied have been satisfied, until such time as such conditions are satisfiedsatisfied or waived, or (ii) and Merger Subsidiary may extend the Offer for a further period of time of not more than 15 20 business days beyond to meet the latest expiration date that would otherwise be permitted under clause objective (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and which is not properly withdrawn pursuant a condition to the Offer. It is agreed ) that there be validly tendered, in accordance with the conditions set forth in Annex A are for the sole benefit terms of the Offer, prior to the expiration date of the Offer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless Merger Subsidiary, represents at least 80% 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 OfferFully Diluted Shares.
(b) As promptly soon as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Merger Subsidiary shall (i) file with the Securities and Exchange Commission SEC (the "SEC"defined below in Section 4.1(a)) a Tender Offer Statement on Schedule 14D-1 14D-l with respect to the Offer, Offer which shall will contain an the offer to purchase and form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively the "Offer Documents"). The ) and (ii) cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated 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, the Purchaser Merger Subsidiary and the Company each agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the . Parent and the Purchaser further agrees Merger Subsidiary agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents and all amendments and supplements thereto Schedule 14D-l prior to their filing its being filed with the SEC or dissemination to the stockholders of the CompanySEC.
Appears in 2 contracts
Sources: Merger Agreement (Computer Management Sciences Inc), Merger Agreement (Computer Associates International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth Section 7.1, as promptly as practicable (but in Annex A shall have occurred and be existing, then, not no event later than the first five business day days 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 execution of this Agreement), the Purchaser shall, subject to the provisions of this Agreementand Parent shall cause Purchaser to, commence a tender (within the meaning of Rule 14d-2 under the Securities Exchange Act of 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 Company Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") Stock at a price of $10.50 22.75 per Share, net to the seller in cashcash (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 and subject to Section 2.2(e). The Company shall not tender Shares held by it or by any of its subsidiaries pursuant to the Offer. The initial expiration date to be set forth in the Offer shall be August 12, 1999 (as extended in accordance herewith, the "Expiration Date"), subject to extension as provided below. Purchaser shall shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer (except that the Minimum Condition (as hereinafter defined) may not be amended or waived below 51% of the total issued and outstanding shares (other than treasury shares) of Company Common Stock), accept for payment and pay for all Shares which have been tendered as soon as it is legally permitted to do so under applicable law. The obligations of 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 there being validly tendered and not 6 withdrawn pursuant prior to the Offer at the earliest time following expiration of the Offer, not less than 18,400,000 shares of Company Common Stock (the "Minimum Condition"), which shares represent 68.3% of the total issued and outstanding shares (other than treasury shares) of Company Common Stock on the date hereof, and the other conditions set forth in Annex A hereto.
(b) The Offer that all 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 shall not amend or waive the Minimum Condition to be less than 51% of the total issued and outstanding shares (other than treasury shares) of Company Common Stock and shall not decrease the Offer Price or decrease the number of Shares sought, amend the conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. The obligation of the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces the maximum number of Shares to be purchased in the Offer, which imposes impose conditions to the Offer in addition to those set forth in Annex A heretoA, which broadens without 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 period prior written consent of the Offer beyond 45 days after Company (such consent to be authorized by the date Board of commencement Directors of the OfferCompany or a duly authorized committee thereof).
(c) Notwithstanding Section 1.1(b): (i) Purchaser shall be entitled to and shall, or which otherwise amends the terms of and Parent agrees to cause Purchaser to, extend the Offer (including any and defer the Expiration Date) for a period ending October 14, 1999, in one or more periods of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoingnot more than 10 business days each, the Purchaser may, without the consent of the Company, (i) extend the Offer if, if at the scheduled initial expiration date of the Offer, or any of the conditions extension thereof, any condition to the Purchaser's obligation to purchase Shares shall Offer is not be satisfied until such time as such conditions are satisfied, or waived; and (ii)
(A) Purchaser shall be entitled, but shall be under no obligation, to extend the Offer (and to defer the Expiration Date) further for a an additional period ending December 14, 1999 (in one or more periods of not more than 15 10 business days beyond each) following an extension pursuant to clause (i) of this sentence, if at the latest expiration date that would otherwise be permitted under Expiration Date, as deferred pursuant to clause (i) of this sentence ifto October 14, 1999: (x) the condition to the Offer set forth in paragraph (ii) of Annex A has not been satisfied or waived; (y) the condition to the Offer set forth in paragraph (iii)(a) of Annex A has not been satisfied or waived (so long as Parent or Purchaser is using its best commercial efforts to cause any such judgment, order or injunction to be vacated or lifted); or (z) the condition to the Offer set forth in paragraph (iii)(e) of Annex A has not been satisfied or waived; and (B) if Purchaser shall not have sent the Company written notice of an extension pursuant to the preceding clause (A) of this Section 1.1(c)(ii) on or before October 8, 1999, Purchaser shall be obligated to extend the date Offer as set forth in clause (A) of such extensionthis Section 1.1(c)(ii) upon written demand of the Company delivered to Purchaser on or before October 12, more than two-thirds but 1999; and (iii) at the Expiration Date, if all conditions to the Offer have been satisfied or waived, and for so long as less than 90 percent 90% of Shares the outstanding shares of Company Common Stock 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 timemay, in its sole discretion. The failure by discretion and without the Parent or the Purchaser at any time to exercise any consent of the foregoing rights shall not be deemed a waiver Company, extend the Offer (and defer the Expiration Date) for up to an additional 20 business days in the aggregate (in periods of any such right and each such right shall be deemed an ongoing right which no more than five business days each). In addition, the Offer Price may be asserted at any time increased and from time the Offer may be extended to timethe extent required by law in connection with such increase without the consent of the Company. Any determination by the Parent or the Purchaser with respect to any extension of the foregoing conditions Offer in accordance herewith shall defer the Expiration Date until the latest date to which the Offer is so extended.
(includingd) In the event that the Offer is terminated by Purchaser, without limitation, the satisfaction of such conditions) it shall be final and binding on the parties. The Company agrees that no Shares held by deliver to the Company will be tendered in a written statement setting forth the applicable provision of Annex A of this Agreement pursuant to which it has elected to terminate the Offer.
(be) As promptly soon as reasonably practicable following execution of this Agreementon the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, which the "Schedule 14D-1"). The Schedule 14D-1 shall contain an offer include, as exhibits, the Offer to purchase Purchase and related a form of letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any amendments and supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser shall further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be
(f) Parent shall provide or cause to be disseminated provided to holders Purchaser all the funds necessary to purchase any shares of Shares, in each case as and Company Common Stock that Purchaser becomes obligated to purchase pursuant to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 CompanyOffer.
Appears in 2 contracts
Sources: Merger Agreement (Red Roof Inns Inc), Merger Agreement (Accor Sa /Fi)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A shall have occurred and be existingMerger Subsidiary shall, 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 as promptly as practicable after the date of hereof, but in no event later than five business days following the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions terms of this Agreement, commence a tender an offer (the "OfferOFFER") for to purchase all of the outstanding shares of Common Stockcommon stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended par value $.001 per share (the "Company Rights AgreementSHARES"), between including the associated Rights (defined in Section 4.1(c)), of the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 29.25 per ShareShare (including the associated Right), net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority there shall be validly tendered in accordance with the terms of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with the Shares then owned by Parent and Merger Subsidiary, represents at least a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding Shares being hereinafter referred to as the "FULLY DILUTED SHARES") (the "Minimum ConditionMINIMUM 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 not withdrawn pursuant to the Offerother conditions set forth in Annex I hereto. The Purchaser Parent and Merger Subsidiary expressly reserves reserve the right to increase waive the price per Share payable in conditions to the Offer or and to make any other changes change in the terms and or conditions of the Offer; PROVIDED, HOWEVER, PROVIDED that, unless previously approved by without the Company in writingwritten consent of the Company, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be paid paid, decreases the price per Share or the number of Shares sought 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 A heretoI, which broadens changes or waives the scope of such conditionsMinimum Condition, which increases extends the minimum number of Shares which must be tendered Offer (except as a set forth in the following sentence), or makes any other change to any 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 Offer set forth in this Subsection 1.01(a), extends Annex I which is adverse to the period holders of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends Shares. Subject to the terms of the Offer in this Agreement and the satisfaction (including any or waiver to the extent permitted by this Agreement) of the conditions to the Offer, Merger Subsidiary shall accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the applicable expiration date of the Offer and shall pay for all such Shares promptly after acceptance; PROVIDED that Merger Subsidiary may (or, if the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Companyclauses (a), (b), (c), (d) and (i) of Annex I exist, shall) extend the Offer if, at the scheduled expiration date of the Offer, Offer or any extension thereof any of the conditions to the Purchaser's obligation to purchase Shares Offer shall not be satisfied have been satisfied, until such time as such conditions are satisfiedsatisfied or waived, or (ii) and Merger Subsidiary may extend the Offer for a further period of time of not more than 15 20 business days beyond to meet the latest expiration date that would otherwise be permitted under clause objective (i) of this sentence if, on the date of such extension, more than two-thirds but less than 90 percent of Shares have been validly tendered and which is not properly withdrawn pursuant a condition to the Offer. It is agreed ) that there be validly tendered, in accordance with the conditions set forth in Annex A are for the sole benefit terms of the Offer, prior to the expiration date of the Offer (as so extended) and not withdrawn a number of Shares, which together with Shares then owned by Parent and the Purchaser and may be asserted by the Parent or the Purchaser regardless Merger Subsidiary, represents at least 90% 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 OfferFully Diluted Shares.
(b) As promptly soon as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser Merger Subsidiary shall (i) file with the Securities and Exchange Commission SEC (the "SEC"defined below in Section 4.1(a)) a Tender Offer Statement on Schedule 14D-1 14D-l with respect to the Offer, Offer which shall will contain an the offer to purchase and form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively the "Offer DocumentsOFFER DOCUMENTS"). The ) and (ii) cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated 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, the Purchaser Merger Subsidiary and the Company agrees each agree promptly to correct any information supplied provided by it specifically for inclusion 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 each of the . Parent and the Purchaser further agrees Merger Subsidiary agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents and all amendments and supplements thereto Schedule 14D-l prior to their filing its being filed with the SEC or dissemination to the stockholders of the CompanySEC.
Appears in 2 contracts
Sources: Merger Agreement (Platinum Technology International Inc), Merger Agreement (Computer Associates International Inc)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX 7 and none of the events or conditions set forth in Annex A shall have occurred and be existing, then, Parent shall cause Acquisition I and Holdco to amend the Original Offer not later than February 1, 2001 as required to reflect the first business day after execution of revised terms and conditions set forth in this Agreement, including Holdco as the Parent shall issue a public announcement of Offeror. In the execution of this AgreementOffer, and not later than the fifth business day after the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, each Share together with the associated rights issued pursuant Right accepted by Holdco in accordance with the terms of the Offer shall be exchanged for the right to receive from Holdco, at the Rights Agreement dated as election of December 5, 1992, as amended the holder of such Share: (X) the "Company Rights Agreement"Cash Consideration or (Y) the Common Stock Consideration plus cash in lieu of fractional shares of Holdco Common Stock in accordance with Section 1.1(g), between without interest, or (Z) the Company Preferred Stock Consideration plus cash in lieu of fractional shares of Holdco Preferred Stock in accordance with Section 1.1(g), without interest, subject to proration in the case of alternatives (Y) and First Interstate Bank (Z) as set forth in Sections 1.1(d) and (e). In the Offer, each Preferred Share accepted by Holdco in accordance with the terms of Californiathe Offer shall be exchanged for the right to receive the Per Preferred Share Amount. Parent and Holdco shall use all reasonable efforts to consummate the Offer. Parent shall cause Holdco to accept for payment, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser and Holdco shall accept for payment payment, Shares and pay for all Preferred Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the offering period in the Offer that at which all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserHoldco. The obligation of the Purchaser Holdco to accept for payment, purchase and pay for Shares and/or Preferred Shares tendered pursuant to the Offer shall be subject only to the condition that the sum of the number of Shares validly tendered plus the number of Preferred Shares validly tendered shall be at least 25,646,399 shares (the "Minimum Condition") and the other conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser Holdco expressly reserves the right to increase the price per Per Share payable in Amount or the Offer or Per Preferred Share Amount and to make waive any other changes in the terms and conditions condition of the Offer; PROVIDED, HOWEVERexcept the Minimum Condition. Without the prior written consent of the Company, that, unless previously approved by Holdco shall not decrease the Company in writing, no Per Share Amount or the Per Preferred Share Amount or change may be made which decreases the price per Share form of consideration payable in the Offer, which changes decrease the form of consideration to be paid in the Offer, which reduces the maximum number of Shares or Preferred Shares sought to be purchased in the Offer, which imposes impose additional conditions to the Offer in addition to those set forth in Annex A 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 period amend any other term of the Offer beyond 45 days after in any manner adverse to the date holders of commencement Shares or Preferred Shares, reduce the time period during which the Offer shall remain open or waive the Minimum Condition. The Cash Consideration and the Per Preferred Share Amount shall be paid net to the seller in cash, less any required withholding of taxes, upon the terms and subject to the conditions of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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 or Preferred Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) As promptly as reasonably practicable following execution Subject to Sections 1.1(d), (e) and (f), each holder of this AgreementShares shall be entitled to elect to specify (i) the number of Shares which such holder desires to have exchanged for the right to receive the Cash Consideration (a "Cash Election"), (ii) the number of Shares which such holder desires to have exchanged for the right to receive Holdco Common Stock (a "Common Stock Election"); and (iii) the number of Shares which such holder desires to have exchanged for Holdco Preferred Stock (a "Preferred Stock Election" and together with a Common Stock Election, the "Stock Elections"). Any Shares which are not the subject of a valid Common Stock Election or valid Preferred Stock Election shall be exchanged for the right to receive the Cash Consideration. Any Cash Election, Common Stock Election or Preferred Stock Election shall be referred to herein as an "Election." Each holder of Shares making a Preferred Stock Election shall also specify an Alternative A, Alternative B or Alternative C election, which election will become effective in the event that proration of the Preferred Stock Consideration is required as provided in Section 1.1(d). Each holder of Shares making a Common Stock Election shall also specify an Alternative A or Alternative B election which election will become effective in the event that proration of the Common Stock Consideration is required as provided in Section 1.1(e) and any holder making a Common Stock Election that does not specify an alternative election shall be deemed to have elected Alternative B. All Elections shall be made on a form furnished by Parent for that purpose (a "Form of Election"), which form may be part of the letter of transmittal accompanying the Offer, and reasonably satisfactory to the Purchaser Company. Holders of record of Shares who hold such Shares as nominees, trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders.
(c) There shall file with be no proration of Cash Elections.
(d) In the Securities event the total number of Preferred Stock Elections would require aggregate Preferred Stock Consideration in excess of the Maximum Preferred Stock Consideration, such Preferred Stock Elections shall be subject to proration as follows: For each Preferred Stock Election, the number of Shares that shall receive the Preferred Stock Consideration shall be the total number of Shares subject to such Preferred Stock Election multiplied by the Preferred Stock Proration Factor. The "Preferred Stock Proration Factor" means a fraction (x) the numerator of which shall be the Maximum Preferred Stock Consideration and Exchange Commission (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Preferred Stock Elections made by all holders of Shares multiplied by the Preferred Stock Consideration. The maximum aggregate amount of the Preferred Stock Consideration shall be 3,500,000 shares of Holdco Preferred Stock (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsMaximum Preferred Stock Consideration"). The Offer Documents shall comply as All Shares subject to form a Preferred Stock Election and an Alternative A or Alternative B election, other than that number converted into the right to receive the Preferred Stock Consideration in all material respects accordance with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"this Section 1.1(d), shall be deemed to be Common Stock Elections (expressing the same Alternative A or Alternative B election) and converted into the rules right to receive the Common Stock Consideration, subject to proration as provided in Section 1.1(e). All shares subject to a Preferred Stock Election and regulations promulgated thereunder andan Alternative C election, on other than that number converted into the date filed right to receive the Preferred Stock Consideration in accordance with the SEC and on the date first published, sent or given to the holders of Sharesthis Section 1.1(d), shall not contain any untrue statement of a material fact or omit to state any material fact required be deemed to be stated therein or necessary in order Cash Elections and converted into the right to make receive 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 CompanyCash Consideration.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (NNG Inc), Agreement and Plan of Merger (Northrop Grumman Corp)
The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article IX and none of the events or conditions set forth in Annex A VIII, (ii) nothing shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including render any of the conditions set forth in the first paragraph of Annex AA incapable of being satisfied and (iii) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent none of the Companyevents set forth in the second paragraph of Annex A hereto shall have occurred and be continuing, as promptly as practicable (ibut in no event later than seven (7) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence if, on after 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 Purchaser shall, and Parent shall cause Purchaser to, commence (within 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 meaning of the foregoing rights shall not be deemed a waiver applicable rules and regulations 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange 2 Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to form in all material respects with the requirements of promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase for cash (the "Offer") any and all of the issued and outstanding shares of Common Stock ("Shares") (including the related Rights (as defined in Section 4.02 of this Agreement)) at a price of $35.00 per Share, and the rules and regulations promulgated thereunder and, on the date filed with the SEC and on the date first published, sent or given net to the holders 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 Shares in the Offer. The obligations of Purchaser to commence the Offer and to accept for payment and to pay for any Shares tendered shall be subject to the conditions set forth in Annex A hereto (any or all of which may, subject to the provisions hereof, be waived by Parent or Purchaser, subject to applicable law). The initial expiration date of the Offer (the "Expiration Date") shall be the 20th business day following the commencement of 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. Without the prior written consent of the Company, Purchaser 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 set forth in Annex A, (v) waive the Minimum Condition (as defined in Annex A) or (vi) make any other change in the terms or conditions of the Offer which is adverse to any holder of Shares, it being agreed that neither a waiver by Purchaser of any of the conditions set forth in Annex A (other than the Minimum Condition) in whole or in part at any time and from time to time in its discretion, nor the extension of the Expiration Date as permitted below, shall be deemed to be adverse to any holder of Shares. Purchaser may, without the consent of the Company, extend the 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, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. In addition, Purchaser shall have the right, without the consent of the Company, to make available a subsequent offering period (within the meaning of Rule 14d-11 under the Exchange Act). Without limiting the right of Purchaser to extend the Offer, provided that this Agreement shall not contain any untrue statement of a material fact or omit have been terminated in accordance with Article VIII hereof, if the conditions set forth in Annex A are not satisfied or, to state any material fact required to be stated therein or necessary in order to make the statements thereinextent permitted hereby, in light waived by Purchaser as of the circumstances under which they are madeExpiration Date, not misleadingthen, 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer Documents if and 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 respect, and each respect any covenant or agreement of the Parent and Company contained herein, or the material breach by the Company of any representation or warranty contained herein. Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Sharesshall, in each case as and subject to the extent required by applicable Federal securities laws. The Parent terms and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 conditions of the CompanyOffer, accept for payment Shares tendered as soon as it is legally permitted to do so under applicable law.
Appears in 2 contracts
Sources: Merger Agreement (Bayer Corp), Merger Agreement (Bayer Corp)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX Section 8.01 and none of the events or conditions set forth in Annex ANNEX A hereto shall have occurred and or be existingexisting (unless such event shall have been waived by Acquiror Sub), then, not later than the first business day after execution of this Agreement, the Parent Acquiror shall issue a public announcement of the execution of this Agreementcause Acquiror Sub to commence, and not later than the fifth business day after the date of the public announcement of the execution of this AgreementAcquiror Sub shall commence, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time Per Share Amount as prompt as reasonably practicable after the date hereof, but in no event later than fifteen (15) days after the date hereof. The initial expiration date for the Offer (the "INITIAL OFFER EXPIRATION DATE") shall be no longer than twenty (20) business days following expiration the commencement of the Offer that all conditions to the Offer set forth in Annex A hereto shall have been satisfied or waived by the PurchaserOffer. The obligation of the Purchaser Acquiror Sub to accept for payment, purchase payment and pay for Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including (i) the condition (the "MINIMUM CONDITION") that a at least the number of Shares representing not less than a majority that, when combined with the Shares, if any, already owned by Acquiror and its direct and indirect subsidiaries, constitute fifty-one percent (51%) of the Shares on a fully diluted basis "Voting Shares" shall have been validly tendered and not withdrawn prior to the expiration date of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in ANNEX A hereto and to the terms and conditions of this Agreement. "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 "Minimum ConditionClass 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. 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 not withdrawn pursuant to the Offer. The Purchaser Acquiror Sub expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer or Offer, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that (notwithstanding Section 8.03) no change may be made which (A) decreases the price per Share payable in the Offer, which changes the form of consideration to be paid in the Offer, which (B) reduces the maximum number of Shares to be purchased in the Offer, which (C) imposes conditions to the Offer in addition to those set forth in Annex ANNEX A hereto, which broadens (D) amends or changes 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for 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 the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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.terms
Appears in 2 contracts
Sources: Merger Agreement (Exigent International Inc), Merger Agreement (Harris Corp /De/)
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article IX its terms and none of the events or conditions set forth in Annex A shall have occurred and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer") for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Annex ANNEX A hereto shall have been satisfied occurred or waived by be continuing, Parent shall cause Merger Sub to, and Merger Sub shall, commence (within the Purchasermeaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof. The obligation of the Purchaser Merger Sub to accept for payment, purchase and pay for payment Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including (i) the condition that a at least the number of Shares representing not less than 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 diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of 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 not withdrawn prior to the expiration date of the Offer (the "Minimum Condition")) and (ii) there shall not have occurred or be continuing any of the conditions set forth in ANNEX A hereto. 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to waive any such condition, to increase the price per Per Share payable in the Offer or Amount, and to make any other changes in the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by the Company in writing, that no change may be made by Parent without the prior written consent of the Company which (A) decreases the price per Per Share Amount or changes the form of consideration payable in the Offer, which changes (B) waives the form of consideration to be paid in the OfferMinimum Condition, which (C) reduces the maximum number of Shares to be purchased in the Offer, which (D) imposes conditions to the Offer in addition to those set forth in Annex ANNEX A 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 hereto or paid for pursuant to the Offer, which, except as hereinafter set forth in this Subsection 1.01(a), extends the period (E) amends any term of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including in any of the conditions set forth in Annex A) in a other manner that is materially adverse to the holders of Sharesthe Shares or the likelihood of the consummation of the Merger. Notwithstanding the foregoing, the Purchaser 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 date of the Offer, any of the conditions to the PurchaserMerger Sub's obligation to purchase accept for payment Shares shall not be satisfied until such time as such conditions are satisfiedor waived, or (ii) extend the Offer for a any period required by any rule, regulation, interpretation or position of the SEC, or the staff thereof, applicable to the Offer, or (iii) extend the Offer for an aggregate period of not more than 15 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 sentence, if, on the date as of such extensiondate, more than two-thirds all of the conditions (including the Minimum Condition) to Merger Sub's obligations to accept for payment Shares are satisfied or waived, but less than 90 percent the number of Shares have been validly tendered and not properly 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. It is agreed that Subject to the terms and conditions set forth in Annex A are 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 benefit purpose 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, complying in whole or in part at any time and from time 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 time, the Per Share Amount in its sole discretion. The failure by cash is to be made to a Person other than the Parent or Person in whose name the Purchaser at any time to exercise any surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the foregoing rights shall not be deemed a waiver of any such right and each such right Company, it shall be deemed an ongoing right which may a condition of payment that the certificate so surrendered shall be asserted at any time endorsed properly or otherwise be in proper form for transfer and from time to time. Any determination that the Person requesting such payment shall have paid all transfer and other Taxes required by the Parent or the Purchaser with respect to any reason of the foregoing conditions (includingpayment of such amount to a Person other than the registered holder of the certificate surrendered, without limitation, or shall have established to the satisfaction of Merger Sub that such conditions) shall be final and binding on the partiesTaxes either have been paid or are not applicable. The Company agrees that no Shares held If this Agreement is terminated by Parent or by the Company will be tendered in Company, Parent shall cause Merger Sub to, and Merger Sub shall, terminate promptly the Offer.
(b) As promptly as reasonably practicable following execution on the date of this Agreementcommencement of the Offer, the Parent and the Purchaser shall file with the Securities and Exchange Commission (the "SEC") SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer, which . The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer Documents shall comply as to 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 on 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, the Purchaser Merger Sub and the Company agrees promptly to correct promptly any information supplied provided by it specifically for inclusion use 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 the Purchaser Merger Sub further agrees agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC 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 Parent and Merger Sub shall give the Purchaser agree Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to such documents being filed with the SEC or disseminated to holders of Shares. Parent and Merger Sub shall provide the Company and its counsel in writing with copies of any comments the Parent, the Purchaser Merger Sub 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 comments and shall provide the Company and its counsel shall be given with a reasonable opportunity to review participate in the formulation of the response of Parent or Merger Sub to such comments.
(c) Subject to applicable law and comment upon the Offer Documents 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 amendments Shares that Merger Sub becomes obligated to accept for payment, and supplements thereto prior to their filing with the SEC or dissemination pay for, pursuant to the stockholders of the CompanyOffer.
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 (i) this Agreement shall not have been terminated in accordance with Article IX VII, and none (ii) all of the events conditions set forth in paragraphs (c)(i) through (c)(vi) of Annex I shall 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 practicable (and in any event within ten Business Days) after the date of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), the Offer to purchase all the outstanding Shares at the Offer Price.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Merger Sub, of the other conditions set forth in Annex A I, Merger Sub shall have occurred (and be existing, 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 execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreement, commence a tender offer (the "Offer"cause Merger Sub to) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not properly withdrawn pursuant to the Offer at as soon as practicable, but in any event no later than three Business Days, after 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 PurchaserExpiration Date. The obligation Offer Price payable in respect of the Purchaser to accept for payment, purchase each Share validly tendered and pay for Shares tendered 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 A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser I. Merger Sub 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, that unless otherwise expressly provided in this Agreement or as previously approved by the Company in writing, no Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) decrease the Offer Price, (ii) change may be made which decreases the price per Share form of consideration payable in the Offer, which changes the form of consideration to be paid in the Offer, which reduces (iii) reduce the maximum number of Shares to be purchased in the Offer, which imposes (iv) amend, modify or waive the Minimum Condition, (v) add any additional conditions to the Offer in addition to those set forth in on Annex A hereto, which broadens I or amend any of the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition conditions and requirements 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 Offer set forth in Annex I in a manner adverse to the holders of Shares, (vi) extend the Expiration Date in a manner other than in accordance with this Subsection 1.01(a)Agreement or (vii) otherwise amend, extends the period modify or supplement any of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer in a manner adverse to the holders of the Shares.
(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 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 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”). If on any then scheduled Expiration Date, all of the conditions to the Offer (including any of the Minimum Condition and the other conditions set forth in Annex AI) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall have not be satisfied until such time as such conditions are been satisfied, or waived by Merger Sub, Merger Sub shall (iiand Parent shall cause Merger Sub to) extend the Offer for a successive periods of up to ten Business Days each, the length of each such period of not more than 15 business days beyond the latest expiration date that would otherwise to be permitted under clause (i) of this sentence 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 determined by 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 , in order 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, permit the satisfaction of such conditions) ; provided, however, that Merger Sub shall not be final required to, and binding on shall not without the partiesCompany’s prior written consent, extend the Offer beyond August 20, 2015 (the “Outside Date”). The Company agrees that no Shares held In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Company will be tendered in the Offer.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file with the U.S. Securities and Exchange Commission (the "“SEC"”) or its staff.
(e) 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 commencement of the Offer, Parent and Merger Sub shall file with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and related Purchase, a form of letter of transmittal and a form of summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be madecollectively, together with any supplements or amendments theretoand supplements, the "“Offer Documents"”). The Parent and Merger Sub agree to cause the Offer Documents shall comply as to 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 on the date first published, sent or given be disseminated to the holders of Shares, shall not contain any untrue statement of a material fact or omit as and to state any material fact the extent 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 Exchange Act. Parent or and Merger Sub, on the Purchaser with respect one hand, and the Company, on the other hand, agree to promptly correct any information supplied provided by the Company in writing specifically it for inclusion use in the Offer Documents. Each of the Parent, the Purchaser and the Company agrees promptly to correct any information supplied by it specifically for inclusion in the Offer 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 each of the Parent and the Purchaser further agrees Merger Sub agree to take all steps necessary to promptly cause the Offer Documents Documents, as so corrected 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 Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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 commentsExchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC, and all amendments Parent and supplements thereto prior 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 the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their filing with counsel may receive from time to time from the SEC or dissemination its staff with respect to the stockholders 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 Companyreasonable 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 this Agreement shall not have been terminated in accordance with Article IX VIII hereof and none of the events or conditions set forth in Annex A I hereto (the "Tender Offer Conditions") shall have occurred and be existingoccurred, 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 as promptly as practicable but in no event later than the fifth business day after from the date of the public announcement of the execution of this Agreement, the Purchaser shall, subject to the provisions of this Agreementand Parent shall cause Purchaser to, commence a tender offer (within the "Offer") for all meaning of Rule 14d-2 under the outstanding shares Securities Exchange Act of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 19921934, as amended (including the "Company Rights Agreement"), between the Company rules and First Interstate Bank of California, as Rights Agent (collectivelyregulations promulgated thereunder, the "SharesExchange Act")) an offer to purchase all outstanding Shares at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for all Shares which have been validly tendered and not withdrawn pursuant to the Offer 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 the Purchaser to accept for payment, purchase Price and pay for Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the 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 not withdrawn pursuant to the Offer. The Purchaser expressly reserves the right to increase the price per Share payable in the Offer 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, no change may be made which decreases the price per Share payable in the Offer, which changes the form of consideration to be 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 A 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 period of the Offer beyond 45 days after the date of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(b) As promptly as reasonably practicable following execution of this Agreement, the Parent and the Purchaser shall file all necessary documents with the Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 in connection with respect to the Offer, which shall contain an offer to purchase and related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, (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; or (iii) if 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 number of Common Shares, for an aggregate period of not more than 10 business days (for all such extensions) beyond the latest expiration date that would 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) Parent and Purchaser represent that the Offer Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of SharesCompany'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 are were 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, the Purchaser Parent and the Company Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information supplied provided by it specifically for inclusion 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 each of the Parent respect and the Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders stockholders of Sharesthe Company, in each case case, as and to the extent required by applicable Federal federal securities laws. The Parent and the Purchaser agree to provide the Company and its counsel in writing with any comments the Parent, 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. 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 2 contracts
Sources: Merger Agreement (Western Atlas Inc), Merger Agreement (3-D Geophysical Inc)
The Offer. (a) Provided that this Agreement Parent shall not have been terminated in accordance with Article IX cause Merger Sub to, and none Merger Sub shall, commence (within the meaning of Rule 14d-2 under the events or conditions set forth in Annex A shall have occurred and be existing, then, not later than Exchange Act) the first business day Offer as soon as reasonably practicable after execution the date of this Agreement, the Parent shall issue a public announcement of the execution of this Agreement, and not but in no event later than the fifth business day 15th Business Day after the date of this Agreement. Notwithstanding the public announcement foregoing, Merger Sub shall not be required to commence the Offer if the Company shall not be prepared to file with the SEC immediately following commencement of the execution Offer, and to disseminate to holders of this AgreementShares, the Purchaser Schedule 14D-9. 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.” In the Offer, each Share accepted by Merger Sub in accordance with the terms of the Offer shall, subject to the provisions adjustments set forth in Section 2.1(e), be exchanged for the right to receive the Offer Consideration. Subject to the terms and conditions of the Offer and this Agreement, commence a tender offer Merger Sub shall, and Parent shall cause Merger Sub to, (the "Offer"x) for all of the outstanding shares of Common Stock, together with the associated rights issued pursuant to the Rights Agreement dated as of December 5, 1992, as amended (the "Company Rights Agreement"), between the Company and First Interstate Bank of California, as Rights Agent (collectively, the "Shares") at a price of $10.50 per Share, net to the seller in cash. The Purchaser shall accept for payment and pay for exchange all Shares which have been validly tendered (and not withdrawn withdrawn) pursuant to the Offer at the earliest time following expiration as soon as practicable after Merger Sub is permitted to do so under applicable Laws (and in any event in compliance with Rule 14e-1(c) of the Exchange Act) and (y) deliver the Offer that all conditions Consideration in exchange for each Share accepted for exchange pursuant to the Offer set forth in Annex A hereto shall have been satisfied or waived by the Purchaser. Offer.
(b) The obligation of the Purchaser Merger Sub to accept for payment, purchase exchange (and pay the obligation of Parent to cause Merger Sub to accept for exchange) Shares validly tendered (and not withdrawn) pursuant to the Offer shall be subject only to the conditions set forth in Annex A hereto, including the condition that a number of Shares representing not less than a majority of the Shares on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer II (the "Minimum Condition"“Offer Conditions”). 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 not withdrawn pursuant to the Offer. The Purchaser .
(c) Merger Sub expressly reserves the right right, in its sole discretion, to (i) increase the price per Share payable in the Offer Consideration and (ii) waive or to make any other changes in to the terms and conditions of the Offer; PROVIDEDprovided, HOWEVERhowever, that, unless previously approved by that without the Company prior written consent of the Company: (A) the Minimum Tender Condition or any of the conditions set forth in writing, clauses (d) or (e) of Annex II may not be amended or waived; and (B) no change may be made which decreases to the price per Share payable in the Offer, which Offer that (1) changes the form of consideration to be paid in delivered by Merger Sub pursuant to the Offer, which reduces (2) decreases any component of the maximum Offer Consideration, (3) decreases the aggregate number of Shares to be purchased by Merger Sub in the Offer, which (4) imposes conditions to the Offer in addition to those set forth the Offer Conditions or modifies the existing Offer Conditions in Annex A hereto, which broadens the scope of such conditions, which increases the minimum number of Shares which must be tendered as a condition manner adverse to the acceptance for payment and payment for shares in stockholders of the OfferCompany, 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, (5) except as hereinafter set forth provided in this Subsection 1.01(aSection 1.1(d), extends the period expiration time of the Offer beyond 45 days after the date initial expiration time of commencement of the Offer, or which otherwise amends the terms of the Offer (including any of the conditions set forth in Annex A) in a manner that is materially adverse to holders of Shares. Notwithstanding the foregoing, the Purchaser may, without the consent of the Company, (i) extend the Offer if, at the scheduled expiration date of the Offer, any of the conditions to the Purchaser's obligation to purchase Shares shall not be satisfied until such time as such conditions are satisfied, or (ii) extend the Offer for a period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clause (i) of this sentence 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.
(bd) The Offer shall initially be scheduled to expire twenty (20) Business Days following the Offer Commencement Date (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act) (the “Initial Expiration Date”). Notwithstanding anything to the contrary contained in this Agreement, but subject to the parties’ respective termination rights under Section 7.1, (i) if, at the time as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer on one or more occasions, for additional successive periods of up to ten (10) Business Days per extension (with the length of such periods to be determined by Parent), until all Offer Conditions are satisfied or validly waived in order to permit the Acceptance Time to occur; provided, however, that in no event shall Merger Sub or Parent be required or permitted, except to the extent consented to by the Company, to extend the Offer to a date later than the Outside Date; and (ii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer from time to time for any period required by any rule, regulation, interpretation or position of the SEC or the staff of the SEC applicable to the Offer; provided, however that in no event shall Merger Sub or Parent be required or permitted, except to the extent consented to by the Company, to extend the Offer to a date later than the Outside Date. For the avoidance of doubt, if, at any Expiration Date, all of the Offer Conditions have been satisfied or waived in writing by Parent and this Agreement has not otherwise been terminated in accordance with its terms Merger Sub shall (and Parent shall cause Merger Sub to) promptly accept for exchange, and deliver the Offer Consideration for, all Shares validly tendered and not validly withdrawn pursuant to the Offer in accordance with this Agreement.
(e) As promptly soon as reasonably practicable following execution after the date of this Agreement, the Parent shall prepare and the Purchaser shall file with the Securities SEC a registration statement on Form S-4 to register the offer and Exchange Commission sale of Parent Common Stock pursuant to the Offer (the "SEC"“Registration Statement”). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act (the “Preliminary Prospectus”). On the Offer Commencement Date, Parent and Merger Sub shall: (i) cause to be filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto, the “Schedule TO”), which shall will contain an offer to purchase or incorporate by reference the Preliminary Prospectus and forms of the related letter of transmittal and summary advertisement (such Tender Offer Statement on Schedule 14D-1 TO and all exhibits, amendments and supplements thereto being referred to collectively in this Agreement as the “Offer Documents”); and (ii) cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable Laws. Parent and Merger Sub shall cause the Registration Statement and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer Documents shall and the filing and dissemination thereof to comply as to form in all material respects with the requirements of applicable Laws. The Company and its counsel shall be given reasonable opportunity to review and comment on the Securities Exchange Act of 1934, as amended Registration Statement and the Offer Documents (including all amendments and supplements thereto) prior to the "Exchange Act")filing thereof with the SEC, and Parent and Merger Sub shall consider and incorporate any such comments as Parent, Merger Sub and their counsel deem appropriate. Parent and Merger Sub shall promptly provide the rules Company and regulations promulgated thereunder andits counsel with a copy of any written comments and a description of any oral comments received by Parent, on the date filed with Merger Sub or their counsel from the SEC and on 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 its staff with respect to information supplied by the Company in writing specifically for inclusion in Registration Statement or the Offer Documents. Each of Parent and Merger Sub shall use reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Registration Statement, the Offer Documents or the Offer. To the extent required by the applicable Laws, (1) each of Parent, the Purchaser Merger Sub and the Company agrees promptly shall use reasonable best efforts to correct promptly any information supplied provided by it specifically for inclusion use in the Registration Statement or the Offer Documents if and to the extent that it becomes aware that such information shall have become false or misleading in any material respect, respect and each of the (2) Parent and the Purchaser further agrees to Merger Sub shall take all steps necessary to promptly cause the Registration Statement and the Offer Documents Documents, as so corrected supplemented or amended to correct such information, 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 Company shall promptly furnish to Parent and the Purchaser agree to provide Merger Sub all information concerning the Company and its counsel the Company’s stockholders that may be required or reasonably requested in writing connection with any comments action contemplated by this Section 1.1(e). Parent shall use reasonable best efforts to have the Parent, Registration Statement declared effective under the Purchaser or their counsel may receive from Securities Act as promptly as possible after its filing and to maintain its effectiveness for so long as shall be required for the SEC or its Staff with respect issuance of Parent Common Stock pursuant to the Offer Documents promptly after and the receipt of such commentsMerger. The Company and its counsel Following the time the Registration Statement is declared effective, Parent shall be given a reasonable opportunity to review and comment upon file the final prospectus included therein under Rule 424(b) under the Securities Act.
(f) Neither Parent nor Merger Sub shall terminate or withdraw the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders then scheduled expiration of the CompanyOffer unless this Agreement is validly terminated in accordance with this Agreement, in which case Merger Sub shall (and Parent shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) Business Day) after such termination of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Knowles Corp), Merger Agreement (Audience Inc)