The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 3 contracts

Samples: Merger Agreement (Covidien PLC), Merger Agreement (Covidien Delaware Corp.), Merger Agreement (Power Medical Interventions, Inc.)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~8.1, ~~Sub shall, and~~ Parent shall cause Sub to, and Sub shall commence (within the meaning 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 ~~within ten~~ as promptly as practicable and in any event no later than the tenth (1010th) business ~~days~~ day following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with ~~requirements of~~ this Section 1.1(a)) ) shall be subject only to the conditions set forth in Annex ~~III hereto~~I (collectively, the “Offer Conditions” and each an “Offer Condition”). Subject to the prior satisfaction or or, to the extent permitted, waiver by Parent or and Sub of ~~conditions set forth in Annex III hereto~~the Offer Conditions, ~~Sub shall, and~~ Parent shall cause Sub to, and Sub shall, consummate the Offer in accordance with its terms and accept for payment and pay the Offer Price for all Shares tendered and not withdrawn promptly following the acceptance in compliance with Rule 14e-1(c) under the Exchange Act of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the ~~conditions set forth in Annex III hereto~~Offer Conditions. Parent and Sub expressly ~~reserves~~ reserve the right to waive any ~~of such conditions~~Offer Conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the ~~Offer Price~~ Closing Amount or CPR Payment Amount, change the form of ~~consideration in which any component~~ payment of the ~~Offer Price is payable~~Closing Amount or CPR Payment Amount, decrease the number of Shares sought in the Offer, waive or change the Minimum ~~Condition (as defined in Annex III hereto)~~Condition, ~~modify or~~ impose additional conditions to the Offer, amend any of the ~~conditions set forth in Annex III hereto or otherwise modify or amend~~ Offer Conditions so as to broaden the scope of any ~~other term or condition of the Offer~~such condition, ~~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~~ offer beyond a date that is 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, or otherwise amend any other term or condition of the Offer in a manner materially adverse to the holders of Shares, in each case without the prior written consent of the ~~Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)~~Company. Notwithstanding the ~~foregoing, but~~ foregoing and subject to the ~~parties’~~ parties respective termination rights ~~to terminate this Agreement~~ set forth 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,~~ Company (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions ~~set forth in Annex III hereto (other than the Minimum Condition)~~ to Sub’s obligation to accept Shares for payment, shall not be satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, (ii~~) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), ) or ~~the~~ its staff ~~thereof,~~ applicable to the Offer. In addition to the ~~foregoing and excluded from any such limitations~~foregoing, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ~~Act~~Act if, as of the Expiration Date, all of the conditions to Sub’s obligations to accept for payment and pay for all Shares are satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of the Company’s stockholders in accordance with the DGCL. (b) Subject to the parties’ respective termination rights set forth in Section 8.1, if, at the time at which the Offer is scheduled to expire, any Offer Condition has not been satisfied or has not been validly waived, then, if so requested by the Company by written notice on or prior to the date the Offer is then scheduled to expire, Sub shall extend the Offer for up to one period of not more than five (5) business days per extension period, until all of the Offer Conditions have been satisfied or, to the extent permitted, validly waived; provided, however, that the Company shall not have the right to request an extension pursuant to this Section 1.1(b) if, at the time of any proposed extension, an Acquisition Proposal has been publicly made and the Company Board of Directors failed to reaffirm its recommendation of the Offer within two (2) business days of Parent’s request. (c) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). ~~The Offer Documents will comply in all material respects~~ Subject to the Company’s compliance with ~~all applicable provisions of the Exchange Act.~~ Section 1.2(c), Parent and Sub agree to take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject to the Company’s compliance with Section 1.2(c),~~ and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable and appropriate additions, deletions or ~~modifications~~ changes thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly ~~upon~~ after receipt of such comments, and any written or oral responses thereto, and the Company shall be given a reasonable opportunity to review such comments and 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~~ the reasonable and appropriate views and comments of the Company and its legal counsel ~~with respect~~ related thereto. (cd) 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~~ Closing Amounts with respect to 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. (e) Parent shall, at or prior to the Acceptance Time (as defined in Section 5.2(b)), duly authorize, execute and deliver the CPR Agreement.

Appears in 3 contracts

Samples: Merger Agreement (Cubist Pharmaceuticals Inc), Merger Agreement (Adolor Corp), Merger Agreement (Cubist Pharmaceuticals Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 hereof and none of the events ~~described~~ set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III~~ I hereto shall have occurred and be ~~continuing (unless waived by Parent~~ continuing, the Purchaser or ~~Sub),~~ Merger Sub ~~shall, and Parent~~ shall ~~cause Sub to,~~ commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder, the “Exchange Act”)~~"EXCHANGE ACT") the Offer ~~within ten (10)~~ as promptly as practicable, but in no event later than five business days following the ~~date hereof~~execution of this Agreement, and, subject to the conditions of the Offer, shall use all reasonable efforts to consummate the Offer. The ~~obligations~~ obligation of ~~Sub~~ the Purchaser to consummate the Offer and to accept for payment ~~and~~ any Shares tendered pursuant thereto shall be subject to ~~pay~~ the satisfaction of only those conditions set forth in Annex I. The Purchaser expressly reserves the right to waive any such condition or to increase the Per Share Amount. The Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable Federal back-up withholding or stock transfer taxes payable by the seller. The Company agrees that no Shares held by the Company will be tendered pursuant to the Offer. (b) Without the prior written consent of the Company, the Purchaser 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; PROVIDED HOWEVER, that if on the initial expiration date of the Offer, which shall be November 18, 1998 (together with any extensions thereof, if any, the "EXPIRATION DATE"), all conditions to the Offer shall not have been satisfied or waived, the Purchaser may extend the Expiration Date up to an additional six (6) business days to the extent necessary to permit such condition to be satisfied; provided, further, however, that the Expiration Date may not be extended beyond November 27, 1998, except with the 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 permitted under the terms of the Offer, all Shares validly tendered and not withdrawn prior to the expiration of the ~~Offer~~ Offer. (~~as it may be extended in accordance with requirements of this Section 1.1(a)~~c) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the ~~“Offer to Purchase”~~"OFFER TO PURCHASE") ~~that contains the terms set forth in this Agreement and~~ having only the conditions set forth in Annex ~~III~~ I hereto. ~~Parent expressly reserves~~ As soon as practicable on the ~~right to waive any of such conditions, to increase~~ date the Offer ~~Price and to make any other changes in~~ is commenced, the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.Securities

Appears in 3 contracts

Samples: Agreement and Plan of Merger (Mecklermedia Corp), Agreement and Plan of Merger (Penton Media Inc), Agreement and Plan of Merger (Penton Media Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 8.1, Merger Sub shall commence (within the meaning of Rule 14d-2(a) of the Exchange Act) the Offer as promptly as practicable after the date hereof (but not later than the twentieth (20th) day from and including the date of initial public announcement of this Agreement). The obligation of Merger Sub to commence the Offer shall be subject only to the condition that none of the events ~~described~~ set forth in ~~any of paragraphs~~ clause (~~a) or (b~~c) of Annex ~~III~~ A hereto shall have occurred and be continuing (~~unless~~ and not waived by Parent or ~~Sub~~Merger Sub in their sole discretion), and the obligation of Merger Sub to accept for payment, purchase and pay for Shares validly tendered and not withdrawn pursuant to the Offer shall be subject only to the satisfaction (or waiver by Parent or Merger Sub in their sole discretion (but subject to the next sentence)) of the conditions set forth in such Annex A. Merger Sub expressly reserves the right to waive any conditions to the Offer or change the terms of the Offer except that, without the prior written consent of the Company, Merger Sub may not waive the condition in clause (a) of Annex A (the “Minimum Condition”) or the conditions in clause (b) of Annex A, and no change in the Offer may be made which (i) decreases the Offer Price payable in the Offer, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer or the minimum number of Shares contemplated by the Minimum Condition, (iv) imposes conditions to the Offer in addition to those set forth in Annex A hereto or which otherwise modifies the conditions set forth in such Annex A or (v) amends any other term of the Offer in a manner adverse to the holders of Shares. Subject to the terms and conditions of the Offer and 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 (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for ~~payment~~ payment, purchase and to pay for ~~any~~ all Shares validly tendered and not withdrawn ~~prior~~ pursuant to the Offer as soon as practicable after the expiration of the Offer (the date of acceptance for payment, the “Acceptance Date” and the time of acceptance for payment on the Acceptance Date, the “Acceptance Time”) or (in the case of Shares tendered during any Subsequent Offering Period) as ~~it may be extended~~ soon as practicable following the valid tender thereof, in any case without interest, subject to any withholding of Taxes required by applicable Law or in accordance with ~~requirements of this Section 1.1(a~~Sections 3.2(i)~~) shall be subject only to the conditions set forth in Annex III hereto~~. ~~Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and~~ Parent shall provide or cause to be provided to Merger Sub ~~to, consummate the Offer in accordance with its terms and accept for payment~~ on a timely basis funds sufficient to purchase and pay for any and all Shares ~~tendered~~ that Merger Sub becomes obligated to accept for payment, purchase and ~~not withdrawn promptly following the acceptance of Shares~~ pay for ~~payment~~ pursuant to the Offer~~. The~~ . (b) Unless extended as provided in this Agreement, the Offer shall ~~be made by means of an offer to purchase~~ expire on the date (the “~~Offer to Purchase~~Initial Expiration Time”) that ~~contains~~ is twenty (20) Business Days after the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is twenty-one (21) business days after commencement of the Offer or (determined pursuant to Rule 14d-1(g)(3) under the last extension (as permitted in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereofExchange Act). ~~Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Merger 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~~ for one or more additional consecutive periods of up to twenty (20) Business Days per extension (with the ~~initial~~ length of such periods to be determined in the sole discretion of Parent consistent with applicable Law), if on any then-scheduled expiration date ~~if, at any scheduled (or extended) expiration~~ of the ~~Offer,~~ Offer any of the conditions to the Offer set forth in Annex ~~III hereto (other than the Minimum Condition)~~ A shall not be have been satisfied or ~~waived for up to two periods of~~ waived, and if this Agreement shall not ~~more than ten (10) business days per extension~~have been terminated in accordance with Article VIII, and (ii~~) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the Offer. ~~In addition~~ If, at the Initial Expiration Time or subsequent expiration time related to an extension of the Offer, including an extension pursuant to this sentence, any of the conditions to the ~~foregoing~~ obligation of Merger Sub to accept for payment, purchase and ~~excluded from~~ pay for Shares tendered pursuant to the Offer has not been satisfied (or waived in accordance with this Agreement), then, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer through such time as the Company may specify, which time shall be no later than the Termination Date; provided, however, that neither Merger Sub nor Parent shall have any obligation to so extend the Offer at the Company’s request if either of the conditions set forth in paragraph (c)(ii) or (c)(iii) of Annex A are not at such time satisfied in accordance with this Agreement. Nothing in this Section 2.1(b) shall affect or impair any termination rights under Article VIII. (c) If all of the conditions to the Offer are satisfied or waived, but the number of Shares validly tendered and not withdrawn, together with the Shares, if any, held by Parent and Merger Sub or any other direct or indirect wholly owned Subsidiary of Parent (any such ~~limitations~~wholly owned Subsidiaries of Parent, Parent and Merger Sub, each a “Parent Company”), constitute less than the number of Shares required to consummate the Merger pursuant to Section 2.10 (assuming the exercise of the Top-Up Option in full), then, upon the applicable expiration time of the Offer, Merger Sub ~~also~~ may (and if the Company so requests Merger Sub shall, and Parent shall cause Merger Sub to) provide a “subsequent offering ~~period”~~ period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange ~~Act~~Act and, if applicable and to the extent permitted under such Rule 14d-11, thereafter extend such subsequent offering period. (bd) On As soon as practicable on the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, Parent and Merger Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto~~which shall include the offer to purchase, ~~the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a~~ form of the related letter of transmittal and ~~summary advertisement~~ form of notice of guaranteed delivery and all other ancillary Offer documents (collectively, together with any amendments and supplements thereto, the “Offer Documents”). ~~Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a).~~ The Offer Documents will comply in all material respects with ~~all~~ the applicable provisions of the Exchange Act. Parent and Merger Sub ~~agree to take all commercially reasonable steps necessary to~~ shall cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares, in each case~~ Shares as ~~and to the extent~~ required by applicable ~~Law~~federal securities Laws. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if ~~and to the extent that~~ it shall have become false or misleading in any material respect or as otherwise required by applicable Law. ~~Parent and~~ Merger Sub further ~~agree~~ agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of ~~Shares, in each case~~ Shares as ~~and to the extent~~ required by applicable ~~Law~~federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto~~ Offer Documents before ~~it is~~ they are filed with the ~~SEC~~SEC or disseminated to holders of Shares, and Parent and Merger Sub shall give due consideration to all reasonable additions, deletions or ~~modifications~~ changes suggested thereto ~~suggested~~ by the Company and its ~~legal~~ counsel. In addition, Parent and Merger Sub agree to provide the Company ~~with~~ and its counsel any ~~comments~~comments or communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents~~Documents promptly after Parent’s or Merger Sub’s, ~~promptly upon~~ as the case may be, receipt of such ~~comments, and any written~~ comments 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~~communications. The Company and its ~~legal~~ counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Merger Sub shall give due consideration to all reasonable ~~views and comments of~~ additions, deletions or changes suggested thereto by the Company and its ~~legal counsel with respect thereto~~counsel. (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

Samples: Merger Agreement (Flir Systems Inc), Merger Agreement (Flir Systems Inc), Merger Agreement (Icx Technologies Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~8.1, ~~Sub shall, and~~ Parent shall cause Sub to, and Sub shall, commence (within the meaning 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 within ten (10) business days following the date ~~hereof~~hereof (the date on which the Offer is commenced being referred to herein as the “Commencement Date”). The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex ~~III hereto~~I hereto (the “Offer Conditions”). Subject to the prior satisfaction or or, to the extent permitted, waiver by Parent or Sub of ~~conditions set forth in Annex III hereto~~the Offer Conditions, ~~Sub shall, and~~ Parent shall cause Sub to, and Sub shall, 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 and pay the Offer Price in exchange for each such Share promptly following such acceptance in compliance with Rule 14e-1(c) of the ~~acceptance of~~ Exchange Act (the time at which Sub first accepts any Shares for payment pursuant to the ~~Offer~~Offer being referred to herein as the “Acceptance Time”). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the ~~conditions set forth in Annex III hereto~~Offer Conditions. Parent expressly reserves the right to waive any of ~~such conditions~~the Offer Conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, without the prior written consent of the Company, (i) decrease the Offer ~~Price or~~ Price, (ii) change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (iii) decrease the number of Shares sought in the Offer, (iv) waive or change the Minimum ~~Condition~~ Condition, (~~as defined in Annex III hereto), modify~~ v) impose additional conditions to the Offer or amend any of the ~~conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition~~ Offer Conditions so as to broaden the scope of ~~the Offer~~such Offer Condition, ~~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~~ (vi) extend the Offer beyond a date that is twenty-one (21) business days after commencement of the Offer or the last extension (~~as permitted~~ in accordance with this ~~Section 1.1~~Agreement), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth ~~below~~in this Agreement, ~~in each case without the prior written consent~~ or (vii) otherwise amend any other term or condition of the ~~Company~~ Offer in a manner materially adverse to the holders of Shares. (~~such consent~~ b) The Offer shall initially be scheduled to ~~be authorized by~~ expire at 12:01 a.m. on the ~~Company Board of Directors or a duly authorized committee thereof~~twenty-first (21st) business day following the 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 ~~foregoing~~contrary contained in this Agreement, but subject to the parties’ respective termination rights ~~to terminate this Agreement~~ set forth 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~~ (i) may, without the consent of the Company, ~~(i)~~ if, at the time as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been validly waived, extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two successive periods of not more than ~~ten~~ twenty (~~10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10~~20) business days per extension or (~~iii~~with the length of such periods to be determined by Parent) until all of the Offer Conditions have been satisfied or, to the extent permitted, validly waived and (ii) shall extend the Offer for any period required by Law including any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the ~~foregoing and excluded from any such limitations~~foregoing, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ~~Act~~Act if, as of the Expiration Date, all of the Offer Conditions have been satisfied or, to the extent permitted, waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of the Company’s shareholders in accordance with the MBCA. (bc) Subject to the parties’ respective termination rights set forth in Section 8.1, if, at the time as of which the Offer is scheduled to expire, any Offer Condition has not been satisfied or has not been validly waived and there has not been an Adverse Recommendation Change, then, if so requested by the Company by written notice at least two (2) business days prior to the date the Offer is then scheduled to expire, Sub shall extend the Offer for up to two (2) successive periods of not more than ten (10) business days per extension period, until all of the Offer Conditions have been satisfied or, to the extent permitted, validly waived. (d) On the ~~date of commencement of the Offer~~Commencement Date, Parent and Sub 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, as exhibits, the Offer to Purchase and a related form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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~~ Recommendation referred to in Section 3.20(a). ~~The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ Parent and Sub ~~agree to~~ shall take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), ~~disseminated~~ disseminate the Offer Documents to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer ~~Documents~~ Documents, as so ~~corrected~~ corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Offer Documents, Schedule TO and any amendment thereto before ~~it is~~ they are filed with the SEC, and Parent and Sub shall ~~give due consideration to~~ include all ~~reasonable~~ additions, deletions or ~~modifications~~ changes thereto suggested by the Company and its legal ~~counsel~~counsel that Parent reasonably determines to be appropriate. 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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~~ incorporate in each response those views and comments of the Company and its legal counsel ~~with respect thereto~~related thereto that Parent reasonably determines to be appropriate. (ce) Parent shall provide or cause to be provided to Sub as promptly as practicable following the ~~expiration of the Offer or~~ Expiration Date and any subsequent ~~extension thereof~~offering period, 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

Samples: Merger Agreement (Somanetics Corp), Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC)

The Offer. (a) ~~Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and~~ So long as none of the events ~~described~~ set forth in ~~any of paragraphs~~ clauses (a) or through (bh) of Annex ~~III~~ I hereto shall have occurred ~~and be continuing (unless waived by Parent~~ or ~~Sub)~~exist, ~~Sub~~ the Purchaser shall, and Parent shall cause ~~Sub~~ the Purchaser to, commence (within the meaning of Rule ~~14d-2 under~~ 14d-2(a) 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 ~~rules~~ documents therein pursuant to which the Offer will be made, and ~~regulations promulgated thereunder~~with any supplements or amendments thereto, the ~~“Exchange Act”~~"Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer ~~within ten~~ to Purchase (10the "Offer to Purchase") ~~business days following~~ which shall be mailed to the ~~date hereof~~holders of Shares with respect to the Offer. The ~~obligations~~ obligation of ~~Sub~~ Parent and the Purchaser to accept for payment ~~and to~~ 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~~ Offer, that number of Shares which represents at least 66-2/3% of the Shares outstanding on a fully diluted basis (~~as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only~~ 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 ~~III hereto~~I hereto ("fully diluted basis" means issued and outstanding Shares and Shares subject to issuance under outstanding employee stock options). ~~Subject to~~ Without the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the ~~Offer; provided~~Company, ~~however, that Sub~~ the Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ (i) decrease the Offer Price or change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, ~~waive~~ or ~~change the Minimum Condition~~ (~~as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or~~ iii) amend any other term ~~or condition~~ of the ~~Offer, in each case~~ Offer in any manner adverse to the holders of any Shares; provided, however, that if on the ~~Company Common Stock~~initial scheduled Expiration Date, ~~impose any conditions~~ 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 ~~Offer that are not set forth on Annex III hereto~~Purchaser shall, or and Parent shall cause the Purchaser to, extend the ~~Offer beyond a~~ expiration date ~~that is twenty-one (21)~~ from time to time until two 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any waiting 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. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the ~~Exchange~~ HSR Act. (b) On Subject to the ~~date of commencement~~ terms of the ~~Offer~~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, ~~Parent~~ the Purchaser will accept for payment and ~~Sub shall file with the SEC,~~ pay for all Shares validly tendered and not withdrawn pursuant ~~to Regulation M-A under the Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect~~ to the Offer as soon as practicable after the Expiration Date. (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). 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). c) The Offer Documents will comply in all material respects with ~~all applicable~~ the provisions of ~~the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC~~ applicable federal securities laws and~~, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub~~, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be date filed with the SEC and ~~disseminated~~ on the date first published, sent or given to ~~holders~~ the Company's shareholders, shall not contain any untrue statement of ~~Shares~~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 each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination light of the ~~Offer~~circumstances under which they were made, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not ~~withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.~~misleading,

Appears in 3 contracts

Samples: Merger Agreement (Snap on Inc), Merger Agreement (Hein Werner Corp), Merger Agreement (Snap on Pace Co)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated~~ Agreement, as promptly as practicable but in ~~accordance with Section 8.1~~ no event later than the fifth business day from and ~~none~~ including the date of the ~~events described in any~~ public announcement of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence ~~(within~~ the ~~meaning~~ Offer. The obligation of ~~Rule 14d-2 under the Securities Exchange Act~~ Merger Sub to, and of ~~1934~~Parent to cause Merger Sub to, ~~as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”))~~ commence the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub to~~ and accept for ~~payment~~ payment, and to pay ~~for~~ for, any ~~Shares validly~~ shares of Common Stock tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase Exhibit A (~~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~~which may be waived by Merger Sub in its sole discretion, ~~to increase~~ provided that, without the ~~Offer Price and to make any other changes in the terms~~ consent of the ~~Offer; provided~~Company, ~~however, that~~ Merger Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer,~~ waive ~~or change~~ the Minimum Condition (as defined in ~~Annex III hereto~~Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or ~~amend any of~~ add to the conditions set forth in ~~Annex III hereto or otherwise modify or amend any other term or condition~~ Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in ~~each case~~ the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to ~~the holders~~ any of the ~~Company Common Stock~~Company's stockholders. The initial expiration date shall be September 15, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (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 be authorized by the Company Board of Directors or a duly authorized committee thereof)1997. Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Merger 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, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the ~~Offer beyond~~ Offer, if at the ~~initial~~ scheduled expiration date ~~if, at any scheduled (or extended) expiration~~ of the ~~Offer,~~ Offer any of the conditions ~~set forth in Annex III hereto (other than the Minimum Condition)~~ to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived ~~for up to two periods of not more than ten (10) business days per extension,~~ or (ii~~) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ Securities and Exchange Commission (“the "SEC~~”),~~ ") or the staff ~~thereof,~~ thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. ~~In addition~~ Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the ~~foregoing~~ failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and ~~excluded from~~ (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such ~~limitations~~condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub ~~also may provide a “subsequent offering period”~~ shall make further extensions of the Offer in accordance with ~~Rule 14d-11 under~~ the ~~Exchange Act~~terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997. (b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The Offer --------------- Documents ~~will~~ shall comply as to form in all material respects with ~~all applicable provisions~~ the requirements 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 the Offer Documents ~~to be filed with~~ on the ~~SEC and~~date first published, ~~subject~~ sent or given to the Company~~’s compliance with Section 1.2(c)~~'s stockholders, ~~disseminated~~ shall not contain any untrue statement of a material fact or omit to ~~holders of Shares~~state any material fact required to be stated therein or necessary in order to make the statements therein, in ~~each case as and~~ light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the ~~extent required by applicable Law~~Company in writing for inclusion in the Offer Documents. ~~Parent and Sub~~Each of Parent, ~~on the one hand,~~ Merger Sub and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and each of Parent and Merger Sub further ~~agree~~ 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 Shares~~the Company's stockholders, in each case as and to the extent required by applicable ~~Law~~Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and ~~comment on the Schedule TO~~ all amendments and ~~any amendment~~ supplements thereto ~~before it is filed~~ prior to their filing with the ~~SEC, and~~ SEC or dissemination to stockholders of the Company. Parent and ~~Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and~~ Merger Sub agree to provide the Company ~~with~~ and its counsel any ~~comments, whether written or oral, that~~ comments Parent, Merger Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall ~~provide or cause~~ contribute to ~~be provided to~~ Merger Sub ~~promptly following~~ on a timely basis 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~~ purchase any shares of Common Stock that ~~have been validly tendered and not withdrawn~~ Merger Sub becomes obligated to purchase pursuant to the Offer and ~~that Sub is obligated~~ to ~~accept for payment~~ perform any of its other obligations pursuant to ~~the Offer and permitted to accept for payment under applicable Law~~this Agreement.

Appears in 3 contracts

Samples: Merger Agreement (Sun Healthcare Group Inc), Agreement and Plan of Merger (Sun Healthcare Group Inc), Merger Agreement (Regency Health Services Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 9.01 and that none of the events ~~described~~ or conditions set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III hereto~~ A shall have occurred and be ~~continuing (unless~~ existing and shall not have been waived by Parent ~~or Sub~~(the conditions set forth in Annex A, the “Tender Offer Conditions”), ~~Sub shall, and Parent~~ Purchaser shall ~~cause Sub to,~~ 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 ~~promulgated~~ thereunder, the “Exchange Act”)) the Offer as promptly as practicable and in any event within ten (10) business days ~~following~~ after the date hereof. The ~~obligations~~ obligation of ~~Sub~~ Purchaser to accept for payment Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for ~~any Shares validly~~ each such tendered and not subsequently withdrawn ~~prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ Share shall be subject only to the Tender Offer Conditions. Purchaser expressly reserves the right to waive any such condition, to increase the Per Share Amount payable in the Offer, and to make any other changes to the terms and conditions of the Offer; provided, however, that without the prior written consent of the Company (i) the Minimum Condition (as defined in Annex A) may not be waived and (ii) no change may be made that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the Per Share Amount payable in the Offer, (C) reduces the maximum number of Shares to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex A hereto, or (E) amends the conditions set forth in Annex ~~III hereto.~~ A hereto in any manner materially adverse to the holders of Shares. (b) Subject to the ~~prior~~ 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 the Offer is open pursuant to, and in accordance with, this Section 2.01(b) or as may be required by applicable Law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. Unless this Agreement or the Offer is terminated in accordance with its terms, Purchaser shall extend the Offer from time to time: (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 condition; or (iv) if any applicable Law, rule, regulation, interpretation or position of the 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 ~~by Parent or Sub~~ of the conditions set forth in ~~Annex III hereto~~clauses (i), ~~Sub~~ (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 that have been validly tendered and not withdrawn in the Offer, together with any Shares then owned by Parent is less than 90% of the outstanding Shares on a Fully Diluted Basis, Purchaser may, in its sole discretion, and subject to the first sentence of 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 ~~Sub~~ it to, ~~consummate~~ promptly after the ~~Offer in accordance with its terms and~~ Expiration Date, accept for payment and pay for (after giving effect to any required withholding Tax) all Shares that have been validly tendered and not withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the Offer. If Purchaser shall commence a subsequent offering period in connection with the Offer, Purchaser shall accept for payment and pay for (after giving effect to any required withholding Tax) all additional Shares validly tendered during such subsequent offering period. (d) As 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 ~~Offer~~ Schedule TO shall ~~be made~~ contain or shall incorporate by ~~means of~~ reference an offer to purchase (the “Offer to Purchase”) ~~that contains the terms set forth in this Agreement~~ and ~~the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms~~ forms of the ~~Offer; provided, however, that Sub shall not,~~ related letter of transmittal and ~~Parent shall cause Sub not to, decrease the Offer Price or change the form~~ forms of ~~consideration in which~~ notice of guaranteed delivery and any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 related summary advertisement (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, as exhibits~~, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the “Offer Documents”). ~~Subject to Section 5.2~~Each of Parent, Purchaser and the Company ~~hereby consents~~ agrees to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to correct promptly ~~correct~~ any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ Purchaser further 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 Law. The Company shall ~~be given~~ promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 2.01(d). Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is~~ Offer Documents prior to such documents being filed with the ~~SEC, and~~ SEC or disseminated to holders of Shares. Parent and ~~Sub~~ Purchaser shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel with any ~~comments, whether written or oral,~~ comments that Parent, ~~Sub~~ Purchaser or their counsel may receive from ~~time to time prior to the expiration or termination of the Offer, from~~ the SEC or ~~its staff~~ the SEC Staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and ~~any written or oral responses thereto, and~~ shall provide 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~~ with a reasonable opportunity to ~~review any responses~~ participate in the response of Parent or Purchaser to such ~~comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto~~comments. (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

Samples: Merger Agreement (Radyne Corp), Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Comtech Telecommunications Corp /De/)

The Offer. (a) Provided ~~that~~ this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 7.1 and ~~none of the events described~~ no event set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III~~ A hereto shall have occurred and be ~~continuing~~ continuing, as promptly as practicable (~~unless waived by Parent or Sub~~but in no event later than ten (10) business days after the public announcement of the execution hereof), ~~Sub~~ the Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules~~ "Exchange Act") ) an offer (the "Offer") to purchase for cash all of the Shares at a price of $0.57 per Share, net to the seller in cash (such price, or such other price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller; provided, -------- however, that Parent may designate another wholly owned, direct or indirect ------- subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(g) under the Exchange Act) in, and ~~regulations promulgated thereunder~~at the commencement of, the ~~“Exchange Act”)) the Offer within ten (10) business days following the date hereof~~Offer, in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. The ~~obligations~~ Company shall not tender Shares held by it or by any of ~~Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior~~ its subsidiaries pursuant to the ~~expiration of~~ Offer. The Purchaser shall, and Parent shall cause the ~~Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be~~ Purchaser to, on the terms and subject ~~only to the conditions set forth in Annex III hereto. Subject~~ to the prior satisfaction or waiver ~~by Parent or Sub~~ of the conditions ~~set forth in Annex III hereto~~to the Offer, ~~Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and~~ accept for payment and pay for ~~all~~ Shares tendered ~~and not withdrawn promptly following the acceptance of Shares for payment pursuant~~ as soon as it is legally permitted to ~~the Offer.~~ do so under applicable law. (b) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") ~~that contains~~ containing the terms set forth in this Agreement and the conditions set forth in Annex ~~III hereto. Parent expressly reserves~~ A hereto and providing for an initial expiration date (the ~~right~~ "Expiration Date", which term shall also indicate any later date to ~~waive any of such conditions, to increase~~ which the Offer ~~Price and to make any other changes~~ is extended in accordance with this Agreement) of twenty (20) business days (as defined in Rule 14d-1 under the ~~terms~~ Exchange Act) from the date of commencement of the Offer~~; provided, however, that Sub~~ . The Purchaser shall not, and Parent shall cause ~~Sub~~ the Purchaser not to, decrease the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable,~~ decrease the number of Shares sought in the Offer, ~~waive or change the Minimum Condition (as defined in Annex III hereto), modify or~~ amend ~~any of~~ the conditions to the Offer set forth in Annex ~~III hereto~~ A 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~~ in addition to those set forth on in Annex ~~III hereto~~A, or extend the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof)~~Company. Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and The Purchaser may, without the consent of the Company, (iA) extend the Offer ~~beyond~~ for the ~~initial expiration date if~~shortest time periods which it reasonably believes are necessary, at in one or more such periods, but in no event more than an additional fifteen (15) business days if Parent and Purchaser are not in material breach of this Agreement and if any ~~scheduled (or extended) expiration of~~ condition to the ~~Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall~~ Offer is not be satisfied or waived and such condition is reasonably capable of being satisfied and (B) if, on the Expiration Date, the Shares validly tendered and not withdrawn pursuant to the Offer is less than eighty percent (80%) of the outstanding Shares (on a fully diluted basis, as such term is defined in Annex A), (1) extend the Offer for up to ~~two periods~~ ten (10) business days, or (2) provide a subsequent offering period of ~~not more than~~ up to ten (10) business days ~~per extension~~in accordance with Rule 14d-11 of the Exchange Act, ~~(ii) from time~~ in each case notwithstanding that all the conditions to ~~time, extend~~ the Offer ~~if at~~ were satisfied as of the ~~scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per~~ date such extension or ~~(iii) extend~~ subsequent offering period, as the case may be, is announced. In addition, the Offer ~~for any period~~ Price may be increased and the Offer may be extended to the extent required by ~~any rule~~law in connection with such increase, ~~regulation or interpretation~~ in each case without the consent of the Company. (c) On the date the Offer is commenced, Parent and Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b") ~~On the date of commencement of the Offer, Parent and Sub 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,~~ amendments and supplements thereto and including the exhibits thereto, the “"Schedule TO”"). The Schedule TO shall ~~include, as exhibits,~~ contain or shall incorporate by reference the Offer to Purchase and a form of letter of transmittal and summary advertisement (~~collectively~~the Schedule TO, the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the “"Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The Offer Documents ~~will~~ shall comply in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws and, on the ~~Exchange Act~~date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and ~~Sub agree to~~ Purchaser shall further take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject~~ and to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. Each of Parent and ~~Sub~~Purchaser, on the one hand, and the Company, on the other hand, ~~agree to~~ shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect ~~or as otherwise required by Law. Parent~~ prior to the Expiration Date and ~~Sub~~ the Purchaser further ~~agree 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 ~~Law~~federal securities laws. The Company and its counsel shall be given ~~a reasonable~~ an opportunity to review and comment on upon the ~~Schedule TO~~ Offer Documents (and shall provide any ~~amendment thereto before it is filed~~ comments thereon as soon as practicable) prior to the filing thereof with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent shall, and ~~Sub agree to~~ shall cause the Purchaser to, provide the Company and its counsel in writing with any ~~comments, whether written or oral,~~ comments that Parent, ~~Sub~~ Purchaser or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of such ~~comments,~~ comments and with copies of any written ~~or oral~~ responses ~~thereto,~~ and ~~the Company shall have the right to consult with~~ telephonic notification of any verbal responses by Parent, ~~Sub and~~ Purchaser or their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocounsel. (cd) Parent shall provide or cause to be provided to ~~Sub promptly following the expiration~~ Purchaser all 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Purchaser becomes obligated to purchase 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~~Offer.

Appears in 3 contracts

Samples: 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 Section ~~8.1 and none of the events described in any of paragraphs~~ 8.1, Merger Sub shall (~~a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall,~~ and Parent shall cause Merger Sub to, ) commence (within the meaning of Rule 14d-2 under the 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 practicable following the date of this Agreement, and in any event within ten (10) ~~business days~~ Business Days following the date ~~hereof.~~ of this Agreement (or such other date as the Parties may agree in writing). (b) The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any Shares validly tendered and not validly withdrawn ~~prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the satisfaction or waiver (to the extent permitted by applicable Laws) of only those conditions set forth in Annex ~~III hereto. Subject~~ A, as such conditions may be modified in accordance with this Agreement (the “Offer Conditions”), and no other conditions. (c) Parent and Merger Sub expressly reserve the right (in their sole discretion) to (x) waive, in whole or in part, any Offer Condition (to the extent permitted by applicable Law), or (y) to increase the amount of cash constituting the Offer Price or to make any other changes in the terms and conditions of the Offer consistent with the terms of this Agreement; provided, however, without the prior ~~satisfaction~~ written consent of the Company, neither Parent nor Merger Sub shall (i) reduce the number of Shares sought to be purchased in the Offer, (ii) reduce the Offer Price or ~~waiver by Parent~~ change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) add to the Offer Conditions or modify or change any Offer Condition in any manner adverse to holders of Shares or that makes the Offer Conditions more difficult to satisfy, (v) except as otherwise provided in this Section 1.1, extend the Expiration Time (as defined below) of the Offer, or (vi) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Shares. Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of ~~conditions set forth~~ the Company, except if this Agreement is terminated in ~~Annex III hereto~~accordance with Section 8.1. If this Agreement is terminated pursuant to Section 8.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Merger Sub, or if this Agreement is terminated in accordance with Section 8.1 prior to the acceptance for payment and payment for Shares in the Offer, Merger Sub shall promptly 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. (d) The initial expiration date and time of the Offer shall be midnight, New York time, on the date that is twenty (20) Business Days (for the purposes of this Section 1.1(d) and Section 1.1(e), Business Days shall be calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) from (and including the day of) the commencement of the Offer (such initial expiration date and time, and any expiration date and time established pursuant to an extension of the Offer in accordance with this Agreement, an “Expiration Time”). (e) If, as a result of the Company’s failure to provide information required under Section 6.9(d) with respect to the Pro Forma Financial Statements, the initial scheduled Expiration Time is less than fifteen (15) Business Days from (but excluding the day of) the date on which the information required by Section 6.9(d) has been provided by the Company, and if this Agreement shall not have terminated in accordance with Section 8.1, then Merger Sub may extend the Offer once until a time that is not later than midnight, New York time, on the date that is fifteen (15) Business Days from (but excluding the day of) the date on which the information required by Section 6.9(d) has been provided by the Company. In addition, if at any then-scheduled Expiration Time, any of the Offer Conditions is not satisfied or waived (to the extent permitted by applicable Law) by Merger Sub, and if this Agreement shall not have terminated in accordance with Section 8.1, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time for periods of up to five (5) Business Days per extension (or such longer period as the Parties may agree) until the date on which all of the Offer Conditions are satisfied or so waived and the Offer is consummated; provided, however, that if the sole then-unsatisfied condition is the Minimum Condition, Merger Sub shall extend the Offer from time to time for up to a total of an additional ten (10) Business Days and, if following such extension or extensions the Minimum Tender Condition remains the sole then-unsatisfied condition, Merger Sub shall extend the Offer if and only if the Company shall have requested in writing that Merger Sub so extend the Offer. In addition, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Expiration Time for the minimum period required by the applicable rules, regulations, interpretations or positions of the SEC (or its staff), or rules of any securities exchange, in each case, as applicable to the Offer. Notwithstanding any provision in this Agreement to the contrary, in no event shall Merger Sub be required to extend the Offer beyond the Outside Date. In addition, Merger Sub may (and Parent shall cause Merger Sub to, if requested by the Company), following the Acceptance Time, make available one or more “subsequent offering periods” in accordance with Rule 14d-11 under the Exchange Act (each a “Subsequent Offering Period”); provided, however, that Merger Sub shall not make available such a Subsequent Offering Period in the event that, prior to the commencement of any such Subsequent Offering Period, Parent and Merger Sub directly or indirectly own more than ninety percent (90%) of the outstanding Shares. (f) Subject to the satisfaction of the Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for (subject to any withholding of tax pursuant to Section 3.4(h)) all Shares validly tendered and not validly 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~~ as promptly as practicable (and in any event within three (3) Business Days) after the Expiration Time and in accordance with applicable Law (the “Offer ~~to Purchase”) that contains the terms set forth in this Agreement~~ Closing” and the ~~conditions set forth in Annex III hereto~~time and date on which Merger Sub accepts such Shares for payment, the “Acceptance Time”). Parent ~~expressly reserves~~ shall provide or cause to be provided to Merger Sub on a timely basis the ~~right~~ funds necessary to ~~waive~~ pay for any ~~of such conditions,~~ Shares that Merger Sub becomes obligated to ~~increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not~~accept for payment, and ~~Parent shall cause Sub not to~~pay for, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 pursuant to the Offer ~~that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after commencement~~ and shall cause Merger Sub to fulfill all of ~~the Offer or the last extension (as permitted in accordance with~~ Merger Sub’s obligations under this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ActAgreement. (bg) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file ~~with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ a ~~Tender Offer Statement~~ 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~~ ) with the SEC with respect to the Offer, which shall ~~include,~~ contain or include as ~~exhibits,~~ exhibits an offer to purchase (the “Offer to ~~Purchase~~ Purchase”) and ~~a form~~ forms of the related letter of transmittal and form of summary advertisement (~~collectively~~the Schedule TO and the Offer to Purchase, together with ~~any amendments~~ all amendments, supplements and ~~supplements~~ exhibits thereto, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents ~~to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares,~~ (in each case as and to the extent required by ~~applicable Law~~the Exchange Act), along with the notice of the Merger (the “Maryland Notice”) required by Section 3-106(d)(1) of the Maryland General Corporation Law (the “MGCL”), to be disseminated to the Company’s stockholders of record. The Company shall promptly furnish Parent and ~~Sub, on~~ Merger Sub all information concerning the ~~one hand,~~ Company and the ~~Company~~Company Subsidiaries as shall be required by the Exchange Act to be set forth in the Offer Documents. Each of Parent, on Merger Sub and the ~~other hand, agree~~ Company agrees to correct promptly ~~correct~~ any information provided by it for use in the Offer Documents or the Maryland Notice if and to the extent that ~~it shall have become~~ such information becomes false or misleading in any material respect or as otherwise required by Law~~. Parent~~ , and Merger Sub further ~~agree~~ 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~~the Company’s stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable ~~Law~~U.S. federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and~~ Offer Documents (including any ~~amendment thereto before it is filed~~ amendments thereto) prior to the filing thereof with the SEC~~, and~~ . Parent and Merger Sub shall ~~give due consideration~~ provide to ~~all reasonable additions, deletions or modifications thereto suggested by~~ the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company with~~ counsel (i) any ~~comments~~comments or communications, whether written or oral, that ~~Parent,~~ Parent or Merger Sub (or their ~~counsel~~ counsel) may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments or communications 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 (ii) a reasonable opportunity to ~~review any responses~~ participate in the response to such comments or ~~communications,~~ communications and ~~Parent and Sub shall give due consideration~~ to ~~all reasonable views and~~ provide comments ~~of the Company and its legal counsel with respect thereto~~on such response. (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

Samples: Merger Agreement (Hillshire Brands Co), Merger Agreement (Tyson Foods Inc), Merger Agreement (Tyson Foods Inc)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated~~ Agreement, as promptly as practicable but in ~~accordance with Section 8.1~~ no event later than the fifth business day from and ~~none~~ including the date of public announcement of the ~~events described in any~~ terms of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, Sub shall, and Parent shall cause Sub to, commence ~~(within~~ the meaning 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 within ten (10) business days following the date hereofOffer. ~~The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended~~ Unless earlier terminated in accordance with ~~requirements~~ the provisions of this ~~Section 1.1(a))~~ Agreement, the Offer shall not expire before 12:00 midnight on the date that is 20 business days from and including the date the Offer is commenced. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer shall be subject ~~only~~ to the conditions set forth in ~~Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions~~ clauses (a) through (h) set forth in ~~Annex III hereto,~~ Exhibit A (any of which may be waived by Sub ~~shall~~in its sole discretion, and ~~Parent~~ it being understood for all purposes of this Agreement that the fact that any condition specified in the first paragraph of Exhibit A shall ~~cause Sub to~~not have been satisfied shall not, ~~consummate~~ without more, constitute a failure of any other condition set forth in Exhibit A) and to the ~~Offer in accordance with its~~ terms and conditions of this Agreement. The obligation of Sub to accept for ~~payment~~ payment, and pay ~~for all~~ for, any 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~~ subject to ~~purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and~~ the conditions set forth in ~~Annex III hereto~~Exhibit A (any of which may be waived by Sub in its sole discretion, provided that, without the consent of the Company, Sub shall not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. ~~Parent~~ Sub expressly reserves the right to ~~waive any of such conditions, to increase the Offer Price and to make any other changes in~~ modify the terms of the Offer~~; provided~~, ~~however~~except that, ~~that~~ without the consent of the Company, Sub shall ~~not~~not (i) reduce the number of Shares subject to the Offer, ~~and Parent shall cause Sub not to~~(ii) reduce the price per Share to be paid pursuant to the Offer, ~~decrease~~ (iii) modify or add to the ~~Offer Price or~~ conditions set forth in Exhibit A, (iv) except as provided in the next two sentences, extend the Offer, (v) change the form of consideration payable in ~~which any component of~~ the Offer ~~Price is payable, decrease~~ or (vi) otherwise amend the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case Offer in any manner materially 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof)Company's stockholders. Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Sub ~~shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and~~ may, without the consent of the Company, (i) extend the Offer ~~beyond~~ if at the ~~initial~~ scheduled expiration date ~~if, at any scheduled (or extended) expiration~~ of the ~~Offer,~~ Offer any of the conditions to Sub's obligation to purchase Shares (as set forth in ~~Annex III hereto (other than the Minimum Condition~~Exhibit A) shall not be ~~satisfied or waived for up to two periods of not more than ten (10) business days per extension~~satisfied, (ii~~) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ Securities and Exchange Commission (“the "SEC~~”),~~ ") or the staff ~~thereof,~~ thereof applicable to the ~~Offer~~Offer or for any period required by applicable law and (iii) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer represents less than 90% of the Fully Diluted Shares (as defined in Exhibit A). Sub and Parent agree that if at any scheduled expiration date of the Offer the HSR Condition (as defined in Exhibit A) has not been satisfied, but at such scheduled expiration date all the other conditions set forth in Exhibit A shall have been satisfied (other than the Minimum Tender Condition), Sub may (and at the request of the Company (confirmed in writing) shall) extend the Offer (a "Special Extension") from time to time until the HSR Condition has been satisfied. In ~~addition~~ no event may the Company or Sub require that the Offer be extended to a date later than 270 days following the date hereof by Special Extensions or to a date later than 180 days following the date hereof for any other reason. Subject to the ~~foregoing~~ terms and ~~excluded from any such limitations~~conditions of the Offer and this Agreement, Sub ~~also may provide a “subsequent offering period” in accordance with Rule 14d-11 under~~ shall, and Parent shall cause Sub to, pay for all Shares validly tendered and not withdrawn pursuant to the ~~Exchange Act~~Offer that Sub becomes obligated to purchase pursuant to the Offer as promptly as practicable after the expiration of the Offer. (b) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The Offer Documents ~~will~~ shall comply as to form in all material respects with ~~all applicable provisions~~ the requirements 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 the Offer ~~Documents to be filed with~~ Documents, on the ~~SEC and~~date first published, ~~subject~~ sent or given to the Company~~’s compliance with Section 1.2(c)~~'s stockholders, ~~disseminated~~ shall not contain any untrue statement of a material fact or omit to ~~holders of Shares~~state any material fact required to be stated therein or necessary in order to make the statements therein, in ~~each case as and~~ light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Sub with respect to information supplied by the ~~extent required by applicable Law~~Company for inclusion in the Offer Documents. ~~Parent and Sub~~Each of Parent, ~~on the one hand,~~ Sub and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly correct~~ amend or supplement any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and each of Parent and Sub further ~~agree~~ 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 Shares~~the Company's stockholders, in each case as and to the extent required by applicable ~~Law~~Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO~~ Offer Documents and ~~any amendment~~ all amendments and supplements thereto ~~before it is filed~~ prior to their filing with the ~~SEC, and Parent and Sub shall give due consideration~~ SEC or dissemination to ~~all reasonable additions, deletions or modifications thereto suggested by~~ stockholders of the ~~Company and its legal counsel~~Company. ~~In addition,~~ Parent and Sub agree to provide the Company and its counsel with any ~~comments, whether written or oral, that~~ comments Parent, Sub or their counsel may ~~receive from time to time prior to the expiration or termination of the Offer,~~ have received from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub ~~promptly following~~ on a timely basis 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Sub becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (Daniel Industries Inc), Merger Agreement (Emersub Lxxiv Inc)

The Offer. ~~(a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and~~ So long as none of the events ~~described~~ set forth in ~~any of paragraphs~~ clauses (a) or through (bg) of Annex ~~III~~ I hereto shall have occurred ~~and be continuing (unless waived by Parent~~ or ~~Sub)~~exist, ~~Sub~~ the Purchaser shall, and Parent shall cause ~~Sub~~ the Purchaser to, commence (within the meaning of Rule ~~14d-2 under~~ 14d-2(a) 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 ~~rules~~ documents therein pursuant to which the Offer will be made, and ~~regulations promulgated thereunder~~with any supplements or amendments thereto, the ~~“Exchange Act”~~"Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer ~~within ten~~ to Purchase (10the "Offer to Purchase") ~~business days following~~ which shall be mailed to the ~~date hereof~~holders of Shares with respect to the Offer. The ~~obligations~~ obligation of ~~Sub~~ Parent and the Purchaser to accept for payment ~~and to~~ or pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a)) shall~~ will be subject only to the satisfaction or waiver of the conditions set forth in Annex ~~III~~ I hereto. ~~Subject to~~ Without the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the ~~Offer; provided~~Company, ~~however, that Sub~~ the Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ (i) decrease the Offer Price or change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (ii) decrease the number of Shares sought to be purchased in the ~~Offer, waive or change the Minimum Condition~~ Offer (except as ~~defined~~ otherwise set forth in ~~Annex III hereto~~Section 1.01(b) hereof), ~~modify or amend any of~~ (iii) change the conditions set forth in Annex ~~III hereto or otherwise modify or amend any other term or condition~~ I, (iv) extend the expiration date of the ~~Offer, in each case in any manner adverse to the holders~~ Offer (except as required by applicable rules and regulations of the ~~Company Common Stock, impose any conditions to~~ SEC and except that Purchaser may in its discretion extend the expiration date of the Offer ~~that are not set forth on Annex III hereto~~for up to 10 business days after the Initial Expiration Date, or and may extend the Offer ~~beyond a date that is twenty-one~~ thereafter for longer periods (~~21) business~~ not to exceed 90 calendar 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement (unless, in the Company's sole discretion, the Company requests that the expiration date of the ~~Offer~~Offer be further extended, ~~Parent and Sub shall file with~~ up to a maximum of 120 calendar days) from the ~~SEC, pursuant to Regulation M-A under~~ date of commencement in the ~~Exchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect~~ event that any condition to the Offer ~~(together with all amendments, supplements and exhibits thereto, the “Schedule TO”~~is not satisfied or waived). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Impact Systems Inc /Ca/), Merger Agreement (Voith Sulzer Acquisition 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 Section 8.1 and none~~ commenced, would give rise to a right to terminate the Offer pursuant to any of the ~~events described~~ conditions set forth in ~~any~~ Annex A hereto, as promptly as practicable after the date hereof (but in no event later than five business days from the public announcement of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~the execution hereof), ~~Sub~~ the Purchaser shall, and Parent shall cause ~~Sub~~ the Purchaser to, commence (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 of the issued and outstanding shares of (i) Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock") at a price of $35.00 per Common Share, net to the seller in cash (such price, or such higher price per Common Share as may be paid in the Offer, being referred to herein as the "Common Offer Price," provided that Purchaser shall not be required to increase the Common Offer Price) and (ii) Class A Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the ~~rules~~ Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and ~~regulations promulgated thereunder~~Harris Trust and Savings Xxxx, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided that, if the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the ~~“Exchange Act”))~~ Purchaser may extend the Offer ~~within ten (10)~~ for up to 20 business days ~~following~~ from the date ~~hereof~~that all conditions to the Offer shall first have been satisfied or waived. The obligations of ~~Sub~~ the Purchaser to accept for payment and to pay for any and all Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject only to there being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the ~~Offer~~ Offer, that number of Shares which, together with any Shares beneficially owned by Parent or the Purchaser, represent at least a majority of the Shares outstanding on a fully diluted basis (~~as it may be extended in accordance with requirements of this Section 1.1(a)~~the "Minimum Condition") ~~shall be subject only to~~ and the other conditions set forth in Annex ~~III~~ A hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") ~~that contains~~ containing the terms set forth in this ~~Agreement~~ Agreement, the Minimum Condition and the other conditions set forth in Annex ~~III~~ A hereto. ~~Parent expressly reserves~~ The Purchaser shall not amend or waive the ~~right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to~~Minimum Condition, decrease the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable,~~ decrease the number of Shares ~~sought in~~ sought, or impose any additional conditions to the Offer, ~~waive or change the Minimum Condition (as defined in Annex III hereto), modify~~ or amend any term of the ~~conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case~~ Offer 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,~~ Shares or extend the ~~Offer beyond a~~ expiration date ~~that is twenty-one (21) business days after commencement~~ of the Offer ~~or the last extension~~ (except for such extensions as ~~permitted in accordance with this Section 1.1~~are contemplated below)~~, if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below~~, in each case without the prior written consent of the Company (such consent to be authorized by the ~~Company~~ Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, ~~but~~ the Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the ~~parties’ respective rights~~ provisions of Section 7.01(b)(i) hereof if, and to ~~terminate this Agreement in accordance with Section 8.1~~the extent that, ~~Sub shall, upon~~ at the ~~written request~~ initial expiration date of the ~~Company at least one business day before~~ Offer, or any extension thereof, all conditions to the ~~then-scheduled expiration date~~Offer have not been satisfied or waived. In addition, the Offer Price may be increased and ~~may~~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 the event of any increase in the Common Offer Price, the Class A Offer Price will be increased by an equal amount, and in the event of any increase in the Class A Offer Price, the Common Offer Price will be increased by an equal amount. (ib) ~~extend~~ As soon as practicable on the date the Offer ~~beyond~~ is commenced, Parent and the ~~initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition)~~ Purchaser shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b") ~~On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including the exhibits thereto, the “"Schedule ~~TO”~~14D-1"). The Schedule ~~TO shall~~ 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents~~”). 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 when filed will comply as to form in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws and, on the ~~Exchange Act~~date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to omissions or information supplied in writing for inclusion in the Offer Documents, in each case by the Company. Each of Parent and ~~Sub agree~~ the Purchaser further agrees to take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject~~ and to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. Each of Parent and ~~Sub~~the Purchaser, on the one hand, and the Company, on the other hand, ~~agree~~ agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect ~~or as otherwise required by Law.~~ and each of Parent and ~~Sub~~ the Purchaser further ~~agree~~ 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 ~~Law~~federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review ~~and comment on~~ the initial Schedule ~~TO and any amendment thereto~~ 14D-1 before it is filed with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and ~~Sub~~ the Purchaser agree to provide the Company and its counsel in writing with any ~~comments, whether written~~ comments or ~~oral,~~ other communications that Parent, ~~Sub~~ the Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the 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 other communications~~, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto~~. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Berg Acquisition Co), Merger Agreement (Berg Acquisition Co)

The Offer. (a) ~~Provided that~~ Subject to the conditions of this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)Agreement, as promptly as reasonably practicable, Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ such Act and the rules and regulations promulgated ~~thereunder,~~ thereunder being referred to herein as the “"Exchange Act”)") the ~~Offer within ten (10) business days following the date hereof~~Offer. The obligations of Sub to, and of Parent to cause Sub to, commence the Offer and accept for ~~payment~~ payment, and to pay ~~for~~ for, any ~~Shares validly~~ shares of Company Common Stock tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a)) shall be~~ are subject ~~only~~ to the conditions set forth in ~~Annex III~~ Exhibit A attached hereto. ~~Subject~~ Sub expressly reserves the right to waive any condition to the ~~prior satisfaction~~ Offer or ~~waiver by Parent~~ amend or modify the terms of the Offer, except that, without the written consent of the Company, Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Merger Consideration per share of Company Common Stock to be paid pursuant to the Offer, (iii) waive the Minimum Tender Condition, add to the conditions set forth in ~~Annex III hereto~~Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, or (iv) change the form of consideration payable in the Offer. Parent and Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Sub shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond February 10, 2002. On the terms and subject to the conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, ~~consummate the Offer in accordance with its terms and accept for payment and~~ pay for all ~~Shares~~ shares of Company Common Stock validly tendered and not withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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~~ Sub becomes obligated to purchase pursuant to the Offer ~~beyond a date that is twenty-one (21) business days~~ promptly 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal (such Schedule TO and ~~summary advertisement (collectively~~the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents”"). ~~Subject to Section 5.2, the Company hereby consents to the inclusion in~~ Parent and Sub agree that the Offer Documents ~~of the recommendation and the approval of the Company Board of Directors referred~~ shall comply as to ~~in Section 3.20(a). The Offer Documents will comply~~ form in all material respects with ~~all applicable provisions of~~ the Exchange Act~~. Parent~~ , and ~~Sub agree to take all commercially reasonable steps necessary to cause~~ the rules and regulations promulgated thereunder and the Offer ~~Documents to be filed with~~ Documents, on the ~~SEC and~~date first published, ~~subject~~ sent or given to the Company~~’s compliance with Section 1.2(c)~~'s shareholders, ~~disseminated~~ shall not contain any untrue statement of a material fact or omit to ~~holders of Shares~~state any material fact required to be stated therein or necessary in order to make the statements therein, in ~~each case as and~~ light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Sub with respect to information supplied by the ~~extent required~~ Company or any of its shareholders specifically for inclusion or incorporation by ~~applicable Law~~reference in the Offer Documents. ~~Parent and Sub~~Each of Parent, ~~on the one hand,~~ Sub and the ~~Company, on the other hand, agree to~~ Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and each of Parent and Sub ~~further agree 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 the Offer Documents as so amended or supplemented to be disseminated to ~~holders of Shares~~the Company's shareholders, in each case as and to the extent required by applicable ~~Law~~Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to their filing with the ~~SEC, and~~ SEC or dissemination to the shareholders of the Company. Parent and Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel in writing with any ~~comments, whether written or oral, that~~ comments Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub ~~promptly following~~ on a timely basis the ~~expiration~~ funds necessary to accept for payment, and purchase any shares of Company Common Stock that Sub becomes obligated to accept for payment, and purchase pursuant to the Offer. (d) The Company hereby approves of and consents to the Offer, the Merger and the other transactions contemplated by this Agreement. The Company hereby represents that the Company's Board of Directors (the "Board of Directors"), at a meeting duly called and held, has (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interest of the Company and its shareholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Offer, the Merger and the Stock Option Agreement dated the date hereof by and between the Company and Sub (the "Option Agreement"), and (iii) resolved to recommend that the Company's shareholders accept the Offer and tender their Shares pursuant to the Offer, and approve and adopt this Agreement and the Merger. The Company further represents that X.X. Xxxxxxxx & Co. has rendered to the Board of Directors its written opinion (a copy of which has been furnished to Parent prior to the execution and delivery of this Agreement by the Company) to be included in the Schedule 14D-9 (as defined below), to the effect that the consideration to be received by the holders of the shares of Company Common Stock pursuant to each of the Offer ~~or any subsequent extension thereof~~and the Merger is fair to the holders of such shares from a financial point of view. The Company has been advised that all of its directors and executive officers intend to tender their shares of Company Common Stock pursuant to the Offer. (e) On the date the Offer Documents are filed with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as ~~applicable~~amended or supplemented from time to time, ~~all funds necessary~~ the "Schedule 14D-9") describing the recommendation of the Board of Directors of the Company to ~~promptly pay in full in cash~~ the ~~aggregate Offer Price for those Shares~~ Company's shareholders that ~~have been validly tendered and not withdrawn~~ they accept the Offer, tender their shares pursuant to the Offer and approve this Agreement and shall mail the Schedule 14D-9 to the holders of Company Common Stock. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of 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 Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to information supplied by Parent or Sub ~~is obligated~~ specifically for inclusion in the Schedule 14D-9. Each of the Company, Parent and Sub shall promptly correct any information provided by it for use in the Schedule 14D-9 if and to ~~accept for payment pursuant~~ the extent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's shareholders, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given reasonable opportunity to review and comment upon the Schedule 14D-9 prior to its filing with the SEC or dissemination to shareholders of the Company. The Company shall provide Parent and its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (f) In connection with the Offer and ~~permitted~~ the Merger, the Company shall cause its transfer agents to ~~accept~~ furnish Sub promptly with mailing labels containing the names and addresses of the record holders, the consenting beneficial owners and the names and addresses of the brokers representing the non-consenting beneficial holders of Company Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, together with copies of all lists of shareholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Company Common Stock, and shall furnish to Sub such information and assistance (including updated lists of shareholders, security position listings and computer files) as Parent may reasonably request in communicating the Offer to the Company's shareholders Subject to the requirements of applicable law, and except for ~~payment under applicable Law~~such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement, Parent and Sub shall hold in confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated, shall, upon request, deliver to the Company all copies of such information then in their possession.

Appears in 2 contracts

Samples: Merger Agreement (Alpnet Inc), Merger Agreement (Alpnet Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and ~~none of~~ the ~~events described~~ Company is prepared in ~~any of paragraphs~~ accordance with Section 2.2(a) to file with the SEC, and to disseminate to the Company’s stockholders, the Schedule 14D-9 on the same date as the Merger Sub commences the Offer, as promptly as practicable (abut in no event later than ten Business Days) ~~or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~after the date hereof, 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 (together with the rules and regulations promulgated thereunder~~Act), the ~~“Exchange Act”)~~Offer. (b) ~~the Offer within ten (10) business days following the date hereof.~~ The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any Shares ~~validly tendered and not withdrawn prior~~ pursuant to the ~~expiration of~~ Offer is subject to the ~~Offer~~ terms and the satisfaction or waiver (as ~~it may be extended~~ provided in ~~accordance with requirements of this~~ Section ~~1.1(a~~2.1(c)) ~~shall be subject only to~~ of the conditions set forth in Annex ~~III hereto~~I (the “Offer Conditions”). ~~Subject~~ On the terms and subject to the ~~prior satisfaction or waiver by Parent or Sub~~ conditions of ~~conditions set forth in Annex III hereto~~the Offer and this Agreement, Merger Sub shall, 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 validly withdrawn pursuant to the Offer (the “Tendered Shares”) promptly ~~following~~ (and in any event within one Business Day with respect to acceptance and three Business Days with respect to payment (in each case, calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)) on or after the Expiration Date. The acceptance for payment of Shares pursuant to and subject to the Offer Conditions is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on a timely basis funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer~~. The Offer shall be made by means of an offer to purchase~~ . (~~the “Offer to Purchase”~~c) ~~that contains the terms set forth in this Agreement~~ Parent and ~~the conditions set forth in Annex III hereto. Parent~~ Merger Sub expressly ~~reserves~~ reserve the right to waive any of ~~such conditions~~the Offer Conditions other than the Minimum Condition, to increase the Offer Price ~~and~~ or to make any other changes in the terms and conditions of the ~~Offer~~Offer not inconsistent with the terms of this Agreement; ~~provided~~provided that Parent and Merger Sub shall not waive, ~~however~~modify or amend the Minimum Condition and, ~~that~~ unless otherwise provided in this Agreement or previously approved by the Company in writing, Parent and Merger Sub shall not~~, and Parent shall cause Sub not to,~~ : (i) decrease the Offer Price or change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable,~~ Offer; (ii) decrease the maximum number of Shares subject to or sought to be purchased in the Offer~~, waive~~ ; (iii) impose conditions on the Offer in addition to the Offer Conditions or ~~change the Minimum Condition (as defined in Annex III hereto)~~amend, modify or ~~amend~~ supplement any of condition in a manner adverse to the ~~conditions set forth in Annex III hereto or otherwise modify or~~ Company’s stockholders; (iv) amend any other term ~~or condition~~ of the ~~Offer,~~ Offer in ~~each case in any~~ a manner that is materially adverse to the ~~holders of~~ Company’s stockholders or (v) extend or otherwise change the ~~Company Common Stock, impose any conditions~~ Expiration Date except as required or permitted by Section 2.1(e). The Offer may not be terminated prior to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate unless this Agreement is terminated or withdrawn in accordance with Section 8.1. (d) On the date the Offer is commenced, Merger 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~~Parent shall cause Merger Sub to, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (~~together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The~~ such Schedule TO ~~shall include, as exhibits,~~ and the documents included therein pursuant to which the Offer ~~to Purchase and a form of letter of transmittal and summary advertisement (collectively~~will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “Offer Documents”~~). Subject to Section 5.2~~) and Rule 13E-3 Transaction Statement on Schedule 13E-3 (together with any exhibits, amendments or supplements thereto, the “Schedule 13E-3” and such Schedule 13E-3 filed by the Parent and Merger Sub, the “Parent Schedule 13E-3”) and (ii) cause the Offer Documents and the Parent Schedule 13E-3 and related documents to be disseminated to the Company’s stockholders to the extent required by applicable Law. The Company hereby consents to the inclusion of the Company Recommendation in the Offer Documents ~~of the recommendation~~ and the ~~approval of~~ Parent Schedule 13E-3. Merger Sub shall, and Parent shall cause Merger Sub to, cause the ~~Company Board of Directors referred to in Section 3.20(a). The~~ Offer Documents ~~will~~ and the Parent Schedule 13E-3 to comply in all material respects with ~~all applicable provisions of~~ the Exchange Act, the rules and regulations thereunder, and other requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company, the Company’s Subsidiaries and the Company’s stockholders that may be required to be set forth in the Offer Documents or the Parent Schedule 13E-3 or otherwise required in connection with any action contemplated by this Section 2.1(d). Each of the Parties agrees to promptly correct any information provided by it for use in the Offer Documents or the Parent Schedule 13E-3 if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and Parent and Merger Sub further agree to take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents and the Parent Schedule 13E-3 as so corrected to be filed with the SEC ~~and, subject~~ and disseminated to the Company’s ~~compliance with Section 1.2(c), disseminated to holders of Shares~~stockholders, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ outside counsel with any comments (including a summary of any oral comments~~, whether written or oral,~~ ) that Parent, Merger Sub or their outside counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents or the Parent Schedule 13E-3 promptly ~~upon~~ after receipt of such comments. Prior to the filing of the Offer Documents or the Parent Schedule 13E-3 (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Company’s stockholders, ~~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~~comments of the SEC with respect to the Offer Documents, ~~either in written or oral form. The~~ Parent and Merger Sub shall provide the Company ~~and its legal counsel shall be given~~ with a reasonable opportunity to review ~~any responses to~~ and comment on such ~~comments~~ Offer Documents, Parent Schedule 13E-3 or ~~communications~~response, and Parent and Merger Sub shall give ~~due~~ reasonable and good faith consideration to ~~all~~ any comments provided by the Company. Parent and Merger Sub shall use reasonable ~~views and comments of the Company and its legal counsel with respect thereto~~efforts to respond promptly to any such SEC comments. (ce) ~~Parent~~ Unless extended or earlier terminated pursuant to and in accordance with the terms of this Agreement, the Offer shall ~~provide or cause to be provided to Sub promptly~~ remain open until 5:00 p.m., New York City time, on the 20th business day (for purposes of this Section 2.1(e), calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the ~~expiration~~ commencement of the Offer (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 Agreement 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 Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) if on the then-effective Expiration Date, the Minimum Condition has not been satisfied or any ~~subsequent extension thereof~~of the other Offer Conditions have not been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of not more than ten Business Days each, or for such longer period as ~~applicable~~the parties may agree in writing in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive any Offer Conditions, ~~all funds necessary~~ other than the Minimum Condition) and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff; provided, however, in the case of clause (i) above and notwithstanding anything to the contrary in such provision, if on the then-effective Expiration Date, the Minimum Condition has not been satisfied and a Change in Recommendation has occurred prior to the then-effective Expiration Date and remains in effect, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer by only one period of no more than ten Business Days (the “Limited Extension”); and, provided, further, that Merger Sub shall not in any event be required to extend the Offer beyond the date on which this Agreement is terminated in accordance with Section 8.1. In the event that this Agreement is validly terminated pursuant to Section 8.1, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly ~~pay~~ (and in ~~full in cash~~ any event within 24 hours of such termination), irrevocably and unconditionally terminate the ~~aggregate Offer Price for those~~ Offer, (ii) not acquire any Shares ~~that have been validly tendered and not withdrawn~~ pursuant to the Offer and ~~that~~ (iii) cause any depositary acting on behalf of Merger Sub ~~is obligated~~ to ~~accept for payment pursuant~~ return, in accordance with applicable Law, all Tendered Shares to the ~~Offer and permitted to accept for payment under applicable Law~~registered holders thereof.

Appears in 2 contracts

Samples: Merger Agreement (Innoviva, Inc.), Merger Agreement (Entasis Therapeutics Holdings Inc.)

The Offer. ~~(a)~~ Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by~~ Article IX, Parent ~~or Sub), Sub~~ shall, ~~and Parent~~ or shall cause Offer Sub to, commence ~~(within~~ an offer to acquire all outstanding shares of SRH Common Stock not owned, directly or indirectly, by the ~~meaning~~ Company at a price of ~~Rule 14d-2 under the Securities Exchange Act~~ $72.00 per share of ~~1934~~SRH Common Stock. Parent shall, and shall cause Offer Sub to, accept for payment all shares of SRH Common Stock tendered to Parent or Offer Sub at, or as ~~amended (together with the rules and regulations promulgated thereunder~~soon as possible following, the ~~“Exchange Act”))~~ Effective Time; provided, that Parent or Offer Sub shall not be required to make payment for, or mail checks with respect to, tendered shares of SRH Common Stock until the seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event earlier than January 10, 2000. The obligation of Parent or Offer Sub to consummate the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub~~ and to accept for payment ~~and to pay for~~ any ~~Shares validly~~ shares of SRH Common Stock tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ pursuant thereto shall be subject only to the conditions set forth in ~~Annex III hereto. Subject~~ Article VIII to this Agreement and to the prior ~~satisfaction~~ or ~~waiver~~ concurrent consummation of the Merger (collectively, the "Offer Conditions"), which are for the sole benefit of Parent and Offer Sub and may be asserted by Parent or Offer Sub regardless of ~~conditions set forth~~ the circumstances giving rise to any such condition, or waived by Parent or Offer Sub in ~~Annex III hereto~~whole or in part at any time and from time to time prior to acceptance of shares for payment in its sole discretion; provided, that in no event shall Parent or Offer Sub ~~shall, and Parent shall cause Sub to, consummate~~ purchase (or accept for purchase) any shares of SRH Common Stock pursuant to the Offer ~~in accordance with its terms~~ if the Merger shall not have occurred or concurrently occur. The Company and ~~accept for payment and pay for all Shares~~ SRH agree that no shares of SRH Common Stock held by the Company, SRH or any of their respective Subsidiaries will be tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ to Parent or Offer Sub pursuant to the Offer. ~~The~~ Parent and Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub ~~shall~~ will not, ~~and Parent shall cause Sub not to~~without the prior written consent of SRH, (i) decrease ~~the Offer Price~~ or change the form of the consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (ii) decrease the number of ~~Shares~~ shares of SRH Common Stock sought in pursuant to the Offer, ~~waive~~ (iii) impose additional conditions to the Offer or change the ~~Minimum Condition~~ Offer Conditions (~~as defined~~ provided, that Parent or Investor in ~~Annex III hereto)~~its sole discretion may waive any such conditions and, ~~modify~~ in connection therewith, substitute a less restrictive condition) or ~~amend~~ (iv) make any other change in the terms or conditions of the ~~conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner~~ Offer which is materially adverse to the holders of the ~~Company~~ shares of SRH Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, Parent and SRH may, without the consent of the ~~Company~~Company or SRH, (ix) extend the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the~~ Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or ~~extended Expiration Date the Minimum Condition is not satisfied~~waived, ~~for up to two periods of ten~~ until such time as all conditions are satisfied or waived, (~~10) business days per extension or (iii~~xi) extend the Offer for any period required by any statute, rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of ~~the United States Securities and Exchange Commission (“SEC”), or the staff thereof,~~ any Governmental Authority applicable to the Offer, and (xii) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (x) and (xi) of this sentence. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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 Subject to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Conditions and the ~~approval~~ terms and conditions of ~~the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ this Agreement, Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SECshall, and Parent ~~and~~ shall cause Offer Sub ~~shall give due consideration to~~ to, accept for payment all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination shares of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been SRH Common Stock validly tendered and not withdrawn pursuant to the Offer ~~and~~ as soon as practicable after the expiration of the Offer; provided, that Parent or Offer Sub ~~is obligated~~ shall not be required to ~~accept for~~ make payment ~~pursuant~~ for, or mail checks with respect to, tendered shares of SRH Common Stock until the seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event earlier than January 10, 2000. (E) The following Section 7.15 shall be added to Article VII of the ~~Offer and permitted to accept for payment under applicable Law~~Original Agreement.

Appears in 2 contracts

Samples: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)

The Offer. (a) Provided that ~~this Agreement~~ nothing shall ~~not~~ have ~~been terminated in accordance with Section 8.1 and none of~~ occurred that would give rise to a right to terminate the ~~events described in~~ Offer pursuant to any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex ~~III hereto. Subject~~ I, as promptly as practicable after the date hereof, but in no event later than five Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $89.50 per Share, net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and no others, (iii) provide that the expiration date shall be February 7, 2008 and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior ~~satisfaction or waiver~~ to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent ~~or Sub~~ and its Affiliates, represents at least a majority of the total number of Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and to the other conditions set forth in Annex ~~III hereto, Sub shall,~~ I and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to ~~the Offer~~no other conditions. ~~The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent~~ Merger Subsidiary expressly reserves the right to waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ and to make any other changes in the terms of or conditions to the Offer; ~~provided~~provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, ~~however,~~ (B) no change may be made that ~~Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change~~ changes the form of consideration ~~in which any component of~~ to be paid, decreases the ~~Offer Price is payable, decrease~~ price per Share or the number of Shares sought in the Offer, ~~waive~~ amends or ~~change the Minimum Condition (as defined in Annex III hereto), modify or amend any of~~ adds to the conditions to the Offer set forth in Annex ~~III hereto~~ I or ~~otherwise modify or amend~~ amends any other term ~~or condition~~ of the ~~Offer, in each case~~ Offer in any manner adverse to the ~~holders~~ stockholders of the Company ~~Common Stock, impose any conditions to~~ and (C) the ~~Offer that are~~ expiration date shall not set forth on Annex III hereto, or extend the Offer beyond a date that is 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”) be extended except as ~~set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)~~otherwise provided herein. Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (ix) ~~extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition)~~ Merger Subsidiary shall ~~not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time,~~ extend the Offer if at the scheduled or extended ~~Expiration Date~~ expiration date of the ~~Minimum Condition is~~ Offer any of the conditions to the Offer shall not ~~satisfied~~be satisfied or waived, ~~for up~~ from time to ~~two periods of ten~~ time until such conditions are satisfied or waived; and (10y) ~~business days per extension or (iii)~~ Merger Subsidiary shall extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ U.S. Securities and Exchange Commission (the “SEC”), ) or the ~~staff thereof,~~ Nasdaq Global Select Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 10.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. ~~In addition to~~ Following expiration of the ~~foregoing and excluded from any such limitations~~Offer, ~~Sub also may~~ Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a “subsequent offering ~~period”~~ period (“Subsequent Offering Period”) in accordance with Rule 14d-11 ~~under~~ of the ~~Exchange~~ 1934 Act. 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, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”). (b) On As promptly as practicable after the date ~~of commencement~~ hereof, but in no event later than five Business Days following the public announcement of the ~~Offer~~execution of this Agreement, ~~Parent~~ Merger Subsidiary shall, and ~~Sub~~ shall cause its Affiliates to, (i) 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~~ SEC an amendment to the ~~Offer (together with all amendments, supplements and exhibits thereto, the “~~Schedule TO~~”). The Schedule TO~~ , which shall ~~include, as exhibits, the Offer~~ include a revised offer to ~~Purchase~~ purchase and a form of letter of transmittal and summary advertisement reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments ~~and~~ or supplements thereto, the “Offer Documents”)~~. Subject to Section 5.2~~, ~~the Company hereby consents~~ and (ii) to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all extent required by applicable ~~provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to~~ U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC ~~and, subject~~ and the Offer Documents as so corrected to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable LawU.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any ~~amendment thereto before it~~ such document is filed with the ~~SEC~~SEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and ~~Parent and Sub~~ Merger Subsidiary shall give ~~due~~ reasonable and good faith consideration to ~~all reasonable additions, deletions or modifications thereto suggested~~ any comments made by the Company and its ~~legal~~ counsel. ~~In addition,~~ Parent and ~~Sub agree to~~ Merger Subsidiary shall provide the Company and its counsel with any ~~comments, whether~~ written or ~~oral, that~~ oral comments Parent, ~~Sub~~ Merger Subsidiary or their respective Affiliates or counsel may receive from ~~time to time prior to the expiration or termination of the Offer, from~~ the SEC ~~or its staff~~ with respect to the Offer ~~Documents~~Documents promptly, ~~promptly upon~~ but in no event later than twelve hours, after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Roche Holding LTD), Merger Agreement (Ventana Medical Systems Inc)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated in accordance with Section 8.1~~ Agreement, as promptly as practicable, and ~~none of the events described~~ in any event no more than seven Business Days, after the date of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, ~~Sub~~ Merger Subsidiary shall, and Parent shall cause ~~Sub~~ Merger Subsidiary to, ~~commence (~~commence, within the meaning of Rule ~~14d-2~~ l4d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act, the ~~“Exchange Act”)) the Offer within ten (10) business days following the date hereof~~Offer. The ~~obligations~~ obligation of ~~Sub~~ Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction ~~or waiver by Parent or Sub~~ of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex ~~III hereto.~~ A and to the terms and conditions of this Agreement; provided that Parent ~~expressly reserves the right to~~ and Merger Subsidiary may waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ (other than the Minimum Condition, which may not be waived without the prior written consent of the Company) and to may make ~~any other~~ changes in the terms and conditions of the ~~Offer; provided~~Offer except that, ~~however~~without the prior written consent of the Company, ~~that Sub shall not~~no change may be made to the form of consideration to be paid, ~~and Parent shall cause Sub not to,~~ no decrease in the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable, decrease~~ the number of Shares sought in the ~~Offer~~Offer may be made, ~~waive~~ no change which imposes additional conditions to the Offer or ~~change the Minimum Condition (as defined in Annex III hereto), modify or amend~~ modifies any of the conditions set forth in Annex ~~III hereto or otherwise modify or amend any other term or condition of the Offer, in each case~~ A 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~~ Shares may be made and neither Parent nor Merger Subsidiary may extend ~~the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”2.01(c), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and ~~Sub~~ Merger Subsidiary shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO ~~with respect~~ (as amended and supplemented from time to ~~the Offer (together with all amendments, supplements and exhibits thereto~~time, the “Schedule TO”)~~. The Schedule TO~~ , which shall ~~include~~comply in all material respects with the provisions of applicable federal securities Laws, ~~as exhibits,~~ and shall contain the offer to purchase relating to the Offer ~~to Purchase~~ and ~~a form~~ forms of the related letter of transmittal and ~~summary advertisement~~ other appropriate documents (~~collectively~~which documents, ~~together with any amendments and supplements thereto~~as amended or supplemented from time to time, are referred to herein collectively as the “Offer Documents”). ~~Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ The Parent and the ~~approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub~~ Merger Subsidiary further agree to ~~take all commercially reasonable steps necessary to cause~~ disseminate the Offer Documents to ~~be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to~~ holders of ~~Shares, in each case~~ Shares as and to the extent required by applicable ~~Law~~federal securities Laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and ~~Sub, on the one hand, and~~ Merger Subsidiary agree to provide the Company, on and to consult with the ~~other hand~~Company and its counsel regarding, ~~agree~~ any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and any responses thereto. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each ~~case~~ case, as and to the extent required by ~~applicable~~ Law. . (c) The ~~Company~~ initial scheduled expiration date of the Offer shall be ~~given a reasonable opportunity to review and comment on~~ 20 Business Days after the ~~Schedule TO and any amendment thereto before it is filed with~~ date of its commencement. Notwithstanding the ~~SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition~~foregoing, 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company Merger Subsidiary shall have the right to ~~consult~~ extend the Offer (i) from time to time if, at any scheduled or extended expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A hereto is not satisfied or waived as a result of the occurrence of any of the events described in subparagraph (b) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the written request of the Company if such conditions or condition could reasonably be expected to be satisfied on or before July 31, 2004, (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) on one or more occasions (all such occasions aggregating not more than 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, ~~Sub~~ represents more than 50% but less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent’s decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (c) and ~~their counsel prior~~ (e) (excluding any wilful or intentional breach of any material obligation of the Company) on Annex A and of its right to ~~responding~~ terminate the Agreement under Sections 8.01(b), (d) (unless there has been a wilful or intentional breach of any material obligation by the Company), (i) or (j), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any ~~such comments~~extended expiration date of the Offer, ~~either~~ and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in ~~written or oral form. The Company~~ the aggregate (collectively, the “Subsequent Period”) pursuant to Rule 14d-11 of the Exchange Act. (d) Subject to the terms and ~~its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications~~conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and ~~Sub~~ pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof; provided that Merger Subsidiary shall ~~give due consideration to~~ immediately accept and promptly pay for all ~~reasonable views and comments of the Company and its legal counsel with respect thereto. (c)~~ Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to ~~Sub promptly following~~ Merger Subsidiary on a timely basis 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Subsidiary becomes obligated to purchase pursuant to the Offer. (e) The Offer ~~and that Sub is obligated to accept for payment pursuant to~~ Price may be increased by the Parent without the consent of the Company, in which case the Offer ~~and permitted to accept for payment under~~ shall be extended, without the consent of the Company, as required by applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Wiser Oil Co), Merger Agreement (Forest Oil Corp)

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 Section 8.1 and none~~ a failure of any of the ~~events described~~ conditions set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III~~ A, attached hereto ~~have occurred~~ and ~~be continuing (unless waived by Parent or Sub)~~made a part hereof, ~~Sub shall~~as promptly as practicable, and in no event later than the fifth (5th) business day following the date hereof, the Parent shall cause ~~Sub~~ the Purchaser to, and the Purchaser shall commence (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer , a tender offer (as it may be ~~extended~~ amended from time to time as permitted hereunder, the "Offer") for all of the issued and outstanding shares (the "Shares") of the Common Stock (defined hereafter) at a price of Twenty Three Dollars and Forty Cents ($23.40) per share net to the seller in cash, without interest thereon (such price or such higher price per share as may be paid in the Offer, being referred to herein as the "Share Price"), which Offer, and the obligation of the Purchaser to accept payment and pay for Shares tendered pursuant to the Offer, shall be in accordance with ~~requirements~~ the terms of this ~~Section 1.1(a)) shall be~~ Agreement, subject ~~only~~ to the conditions set forth in Annex ~~III~~ A hereto. ~~Subject~~ The Purchaser shall, subject only to the ~~prior~~ satisfaction or waiver ~~by Parent or Sub~~ of the conditions set forth in on Annex ~~III~~ A hereto, ~~Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and~~ accept for payment and pay for all Shares validly tendered and not withdrawn ~~promptly following the acceptance of Shares for payment~~ 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”") ~~that contains~~ containing 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~~Agreement, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex ~~III~~ A hereto~~), modify or amend any of~~ ) and the other conditions set forth in Annex ~~III hereto or otherwise modify or amend~~ A hereto. Notwithstanding the foregoing, the Purchaser expressly reserves the right to increase the price per Share payable in the Offer and make any other ~~term or condition of the Offer, in each case in any manner adverse~~ changes to the ~~holders of the Company Common Stock, impose any~~ terms or conditions ~~to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after commencement~~ of the Offer (or waive in whole or in part, at the ~~last extension (as permitted in accordance with this Section 1.1~~sole discretion of the Purchaser any of such conditions), ~~if any~~provided, of however, that the ~~Offer~~Purchaser will not, ~~whichever is later (the “Expiration Date”) except as set forth below, in each case~~ without the prior written consent of the Company (such consent to be authorized by the ~~Company~~ Board of Directors of the Company), (i) waive the Minimum Condition, (ii) subject to clause (z) of the proviso in the immediately following sentence, extend the Offer if all of the Offer conditions are satisfied or ~~a duly authorized committee thereof~~waived, (iii) decrease the Share Price, change the form of consideration payable in the Offer or decrease the number of Shares sought, (iv) impose additional conditions to the Offer, (v) waive the condition described in clause (x) of Annex A hereto or (vi) amend the conditions of the Offer 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). ~~Notwithstanding~~ The initial expiration date of the ~~foregoing~~Offer shall be 20 business days following commencement of the Offer (such date and time, ~~but subject to the parties’ respective rights to terminate this Agreement~~ as may be extended in accordance with ~~Section 8.1~~the terms hereof, ~~Sub shall~~is referred to as the "Expiration Date"); provided, ~~upon the written request of the Company at least one business day before the then-scheduled expiration date~~however, and notwithstanding anything in the foregoing to the contrary, it is understood and agreed that the Purchaser may, from time to time, in its sole discretion extend the Expiration Date, but not beyond September 24, 1997, without the consent of the ~~Company,~~ Company (ix) ~~extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer,~~ if any of the conditions ~~set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up~~ to ~~two periods of not more than ten (10) business days per extension, (ii) from time to time, extend~~ the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition is~~ have not been satisfied, for up the minimum period of time necessary to ~~two periods of ten~~ satisfy such condition; (10y) ~~business days per extension or (iii) extend the Offer~~ for any period required by any order, decree or ruling of, or any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of, any Governmental Entity (as hereafter defined) applicable to the Offer; or (z) for a period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence solely for the purpose of obtaining valid tenders (which are not withdrawn) of 90% of the Shares. A record holder who validly tenders, and does not withdraw, pursuant to the Offer at least 500,000 shares of Common Stock which such holder beneficially owns, may receive, upon acceptance of such shares by the Purchaser pursuant to the Offer, payment therefor by wire transfer of immediately available funds to an account in the United States designated in writing by such holder at the time such shares are tendered pursuant to the Offer. (b) As soon as practicable on the date the Offer is commenced, the Parent and the Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b") ~~On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including the exhibits thereto, the “"Schedule ~~TO”~~14D-1"). The Schedule ~~TO shall~~ 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The Offer Documents will comply as to form in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws and, on the ~~Exchange Act~~date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Parent or the Purchaser with respect to information furnished by the Company for inclusion or incorporation by reference in the Offer Documents. The information supplied in writing by the Company for inclusion or incorporation by reference in the Offer Documents and 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 and ~~Sub agree to~~ the Purchaser will take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject~~ and to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of the Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. Each of the Parent and ~~Sub~~the Purchaser, on the one hand, and the Company, on the other hand, ~~agree to~~ will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect ~~or as otherwise required by Law. Parent~~ and ~~Sub further agree to~~ the Purchaser 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 ~~Law~~federal securities laws. The Company and its counsel shall be given ~~a reasonable~~ the opportunity to review ~~and comment on~~ the Schedule ~~TO and any amendment thereto~~ 14D-1 before it is filed with the SEC. In addition, ~~and~~ the Parent and ~~Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ the Purchaser will provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel in writing with any comments, whether written or oral, ~~that~~ the Parent, ~~Sub~~ the Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Foodbrands America Inc), Merger Agreement (Ibp Inc)

The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ ARTICLE 10 and ~~none~~ (ii) all of the ~~events described~~ conditions set forth in ~~any of paragraphs (a) or~~ clauses (b), (c) and (g) of Annex ~~III hereto have occurred~~ I shall then be satisfied (in the case of clause (b), with respect to covenants and ~~be continuing~~ obligations that the Company is required to comply with or to perform prior to such time) or waived (~~unless waived~~ to the extent applicable) by Parent or and Merger Sub), as promptly as reasonably practicable Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act~~ Act) the Offer; provided, however, Merger Sub shall not be required to commence the Offer if the Company shall not: (A) have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of ~~1934~~the Offer Documents; (B) have given Parent and its legal counsel reasonable opportunity to review and comment on the Schedule 14D-9 prior to the filing thereof with the SEC and reasonable consideration to any such comments provided by Parent or its legal counsel; and (C) be prepared to file with the SEC immediately following commencement of the Offer, and to disseminate to holders of Shares, the 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 ~~amended~~ the “Offer Commencement Date.” (~~together~~ b) In the Offer, each Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive the Offer Price, which at the election of the holder means, for each Share (i) that amount of cash equal to the Per Share Cash Purchase Price, without interest (such amount for each such Share, the “Cash Consideration”), or (ii) that number of fully paid and non-assessable Parent Common Shares equal to the Exchange Ratio, without interest (the “Share Consideration,”), in each case subject to proration as set forth in Section 2.01(f) and subject to the other provisions of this Section 2.01. (c) Notwithstanding any other terms or provisions of the Offer or this Agreement, and in addition to (and not in limitation of) Merger Sub’s rights to extend and amend the Offer (subject to the provisions of this Agreement), Merger Sub shall not be obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated ~~thereunder,~~ under the “Exchange Act”)) , shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the Offer ~~within ten~~ (10and not theretofore accepted for payment), if (i) ~~business days following~~ immediately prior to the ~~date hereof. The obligations of Sub to accept for payment and to pay for any Shares~~ Expiration Date, there shall not have been validly tendered and not validly withdrawn that number of Shares that would represent one Share more than one-half (1/2) of the Adjusted Outstanding Share Number, calculated as of immediately prior to the ~~expiration~~ Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the ~~Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the~~ other conditions set forth in Annex ~~III hereto. Subject to~~ I (the ~~prior satisfaction or waiver by Parent or Sub of~~ Minimum Condition and the other conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant I are referred to ~~the Offer. The Offer shall be made by means of an offer to purchase (~~collectively as the “Offer ~~to Purchase~~Conditions”) shall not have been satisfied or waived (to the extent applicable) by Parent and Merger Sub. For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the number of Shares equal to the sum of: (A) the aggregate number of Shares issued and outstanding immediately prior to the applicable time of determination; plus (B) all Shares that ~~contains~~ the Company may be required to issue upon the vesting, conversion, settlement or exercise, as applicable, of all Company Stock Options and other Company Securities that are outstanding immediately prior to the applicable time of determination, regardless of the conversion or exercise price or other terms ~~set forth~~ and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub may, in ~~this Agreement~~ their sole discretion, include or exclude Shares tendered in the Offer pursuant to guaranteed delivery procedures. (d) Parent and Merger Sub expressly reserve the ~~conditions set forth~~ right, in ~~Annex III hereto. Parent expressly reserves the right to waive any of such conditions~~their sole discretion, to (i) increase the Offer ~~Price~~ Price, (ii) waive any Offer Condition, and to (iii) make any other changes in to the terms and conditions of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, Parent and Merger Sub shall not, except pursuant to Section 6.02(b): (iA) ~~extend the Offer beyond the initial expiration date if~~amend, ~~at any scheduled (~~modify or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date waive the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the ~~staff thereof, applicable~~ Termination Condition; (B) change the form of consideration to be delivered by Merger Sub pursuant to the Offer~~. In~~ ; (C) decrease the Offer Price or the number of Shares sought to be purchased by Merger Sub in the Offer; (D) impose any conditions to the Offer in addition to the ~~foregoing and excluded from~~ Offer Conditions; (E) except as permitted by this Agreement, terminate the Offer; (F) except as permitted by this Agreement, extend or otherwise change the Expiration Date; (G) except as permitted by Section 2.01(l), provide any ~~such limitations, Sub also may provide a~~ “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act~~. Parent and Sub agree to take all commercially reasonable steps necessary to cause~~ ; or (H) otherwise amend the Offer ~~Documents~~ or waive or modify any Offer Condition in any manner that adversely affects (other than in an immaterial respect) the holders of Shares generally. (e) Subject to ~~be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c~~Sections 2.01(f), ~~disseminated~~ (g) and (i), each holder of Shares shall be entitled to ~~holders~~ elect for the Shares held by such holder (i) the number of ~~Shares, in each case as and~~ such Shares that such holder desires to exchange for the ~~extent required by applicable Law. Parent and Sub, on~~ right to receive the ~~one hand~~Cash Consideration (a “Cash Election”), and (ii) the ~~Company, on~~ number of such Shares that such holder desires to exchange for the ~~other hand, agree~~ right to ~~promptly correct any information provided by it for use in~~ receive the ~~Offer Documents if and to the extent that it shall have become false~~ Share Consideration (a “Share Election”). Any Cash Election or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company Share Election shall be ~~given~~ referred to herein as an “Election,” and shall be made on a ~~reasonable opportunity to review~~ form mutually agreed by Parent, Merger Sub and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company ~~and its legal counsel. In addition~~for that purpose (a “Form of Election”), ~~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 the expiration or termination~~ included as part of the letter of election and transmittal accompanying the Offer. Holders of record who hold Shares as nominees, ~~from~~ trustees or in other representative capacities may submit multiple Forms of Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the ~~SEC or its staff~~ avoidance of doubt, a holder of Shares may make a Cash Election and/or a Share Election with respect to ~~the Offer Documents, promptly upon receipt~~ all or any part of such ~~comments~~holder’s Shares. (f) Notwithstanding anything herein to the contrary: (i) If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Available, ~~and any written or oral responses thereto~~such Elections shall be subject to proration as follows: for each Cash Election, ~~and~~ the ~~Company~~ number of Shares that shall ~~have~~ be converted into the right to ~~consult with Parent~~receive the Cash Consideration shall be (A) the total number of such Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, ~~Sub and their counsel prior~~ rounded down to ~~responding to any such comments, either in written or oral form~~the nearest Share. The ~~Company and its legal counsel~~ “Cash Proration Factor” means a fraction (x) the numerator of which shall be ~~given a reasonable opportunity~~ the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to ~~review any responses~~ all Cash Elections made by all holders of such Shares (before giving effect to the proration provisions of this Section 2.01(f)), multiplied by the Cash Consideration. Each Share subject to such ~~comments or communications~~Cash Election that was not converted into the right to receive the Cash Consideration in accordance with this Section 2.01(f) shall be converted into the right to receive the Share Consideration. All prorations resulting from this Section 2.01(f) shall be applied on a pro rata basis, ~~and Parent and Sub shall give due consideration~~ such that each holder who tenders Shares subject to ~~all reasonable views and comments~~ a Cash Election bears its proportionate share of the ~~Company and its legal counsel with respect thereto~~proration, based on the percentage of all such Shares subject to Cash Elections that is reflected by the total amount of Shares subject to a Cash Election tendered by such holder. (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 2 contracts

Samples: Merger Agreement (Mitel Networks Corp), Merger Agreement (Mavenir Systems Inc)

The Offer. ~~(a)~~ Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by~~ Article IX, Parent ~~or Sub), Sub~~ shall, ~~and Parent~~ or shall cause Offer Sub to, commence ~~(within~~ an offer to acquire all outstanding shares of SRH Common Stock not owned, directly or indirectly, by the ~~meaning~~ Company at a price of ~~Rule 14d-2 under~~ $72.00 per share of SRH Common Stock. Parent shall, and shall cause Offer Sub, to use its reasonable efforts to cause the ~~Securities Exchange Act of 1934~~Offer to be consummated at, or as ~~amended (together with the rules and regulations promulgated thereunder~~soon as possible following, the ~~“Exchange Act”))~~ Effective Time. The obligation of Parent or Offer Sub to consummate the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub~~ and to accept for payment and to pay for any ~~Shares validly~~ shares of SRH Common Stock tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ pursuant thereto shall be subject only to the conditions set forth in ~~Annex III hereto. Subject~~ Article VIII to this Agreement and to the prior ~~satisfaction~~ or ~~waiver~~ concurrent consummation of the Merger (collectively, the "Offer Conditions"), which are for the sole benefit of Parent and Offer Sub and may be asserted by Parent or Offer Sub regardless of ~~conditions set forth~~ the circumstances giving rise to any such condition, or waived by Parent or Offer Sub in ~~Annex III hereto~~whole or in part at any time and from time to time in its sole discretion; provided, that in no event shall Parent or Offer Sub ~~shall, and Parent shall cause Sub to, consummate~~ purchase any shares of SRH Common Stock pursuant to the Offer ~~in accordance with its terms~~ if the Merger shall not have occurred or concurrently occur. The Company and ~~accept for payment and pay for all Shares~~ SRH agree that no shares of SRH Common Stock held by the Company, SRH or any of their respective Subsidiaries will be tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ to Parent or Offer Sub pursuant to the Offer. ~~The~~ Parent and Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub ~~shall~~ will not, ~~and Parent shall cause Sub not to~~without the prior written consent of SRH, (i) decrease ~~the Offer Price~~ or change the form of the consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (ii) decrease the number of ~~Shares~~ shares of SRH Common Stock sought in pursuant to the Offer, ~~waive~~ (iii) impose additional conditions to the Offer or change the ~~Minimum Condition~~ Offer Conditions (~~as defined~~ provided, that Parent or Investor in ~~Annex III hereto)~~its sole discretion may waive any such conditions and, ~~modify~~ in connection therewith, substitute a less restrictive condition) or ~~amend~~ (v) make any other change in the terms or conditions of the ~~conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner~~ Offer which is materially adverse to the holders of the ~~Company~~ shares of SRH Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, Parent and SRH may, without the consent of the ~~Company~~Company or SRH, (ix) extend the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the~~ Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled expiration date of the Offer any of the Offer Conditions shall not have been satisfied or ~~extended Expiration Date the Minimum Condition is not satisfied~~waived, ~~for up to two periods of ten~~ until such time as all conditions are satisfied or waived, (~~10) business days per extension or (iii~~xi) extend the Offer for any period required by any statute, rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of ~~the United States Securities and Exchange Commission (“SEC”), or the staff thereof,~~ any Governmental Authority applicable to the Offer, and (xii) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (x) and (xi) of this sentence. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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 Subject to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation Conditions and the ~~approval~~ terms and conditions of ~~the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ this Agreement, Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SECshall, and Parent ~~and~~ shall cause Offer Sub ~~shall give due consideration to all reasonable additions~~to, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such commentsaccept for payment, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicablepay for, all ~~funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been~~ shares of SRH Common Stock validly tendered and not withdrawn pursuant to the Offer ~~and that Sub is obligated to accept for payment pursuant to~~ as soon as practicable after the ~~Offer and permitted to accept for payment under applicable Law~~expiration of the Offer.

Appears in 2 contracts

Samples: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 10.01 and ~~none~~ nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the ~~events described~~ conditions set forth in ~~any of paragraphs~~ Annex I hereto (athe “Offer Conditions”) or (bother than the conditions set forth in clause (i) and subclause (D) of ~~Annex III hereto have occurred and be continuing~~ clause (~~unless waived by Parent or Sub~~ii)), ~~Sub~~ no earlier than fifteen (15) Business Days following the date of this Agreement and no later than September 1, 2016, Merger Subsidiary shall, and Parent shall cause ~~Sub~~ it to, commence (within the meaning of Rule 14d-2 under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)~~1900 Xxx) the Offer ~~within ten (10) business days following~~ at the ~~date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior~~ Offer Price, payable net to the ~~expiration~~ holders in cash, without interest, subject to any deduction or withholding of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver Taxes required by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the OfferApplicable Law. The Offer shall be ~~made by means~~ subject to the Offer Conditions. The time scheduled for payment for Shares accepted for payment pursuant to and subject to the conditions of ~~an offer~~ the Offer is referred to ~~purchase (~~in this Agreement as the “Offer ~~to Purchase~~Closing”~~) that contains the terms set forth in this Agreement~~ , and the ~~conditions set forth in Annex III hereto.~~ date on which Merger Subsidiary commences (within the meaning of Rule 14d-2 under the 1900 Xxx) the Offer is referred to as the “Offer Commencement Date”. (b) Parent and Merger Subsidiary expressly ~~reserves~~ reserve the right to waive (in whole or in part) any of ~~such conditions, to increase~~ the Offer ~~Price~~ Conditions at any time and to make any ~~other changes~~ change in the terms of ~~the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price~~ or ~~change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in~~ conditions to the Offer, including raising the Offer Price; provided that, without the prior written consent of the Company, neither Parent nor Merger Subsidiary shall: (i) waive or change the Minimum Condition (as defined in Annex ~~III hereto~~I), ; (ii) decrease the Offer Price; (iii) change the form of consideration to be paid in the Offer; (iv) decrease the number of Shares sought in the Offer; (v) extend or otherwise change the expiration date of the Offer except as otherwise provided herein; or (vi) impose additional Offer Conditions or otherwise amend or modify ~~or amend~~ any of the ~~conditions~~ Offer Conditions or terms of the Offer in a manner that is adverse to the beneficial owners of Shares. (c) Unless extended as provided in this Agreement, the Offer shall initially be scheduled to expire on the date that is twenty (20) Business Days (calculated as set forth in ~~Annex III hereto or otherwise modify or amend any other term or condition of~~ Rule 14d-1(g)(3) under the ~~Offer, in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions to~~ 1900 Xxx) after the Offer ~~that are not set forth on Annex III hereto, or extend the Offer beyond a~~ Commencement Date (such initial expiration date ~~that is twenty-one (21) business days after commencement~~ of the Offer or such subsequent date to which the ~~last extension (as permitted~~ expiration of the Offer is extended in accordance with the terms of this ~~Section 1.1)~~Agreement, ~~if any, of the Offer, whichever is later (~~the “Expiration Date”); provided that, unless otherwise agreed in writing by the Parties, such initial Expiration Date shall not be a date that is within five (5) ~~except as set forth below, in each case without~~ Business Days after the ~~prior written consent~~ date of a regularly scheduled payroll run of the ~~Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)~~Company. Notwithstanding anything to the ~~foregoing~~contrary contained in this Agreement, but subject to the parties’ respective termination 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 Companyunder Article 7, (i) ~~extend the Offer beyond the initial expiration date if~~Merger Subsidiary shall, ~~at any scheduled (or extended) expiration of the Offer~~and Parent shall cause it to, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof or Nasdaq applicable to the ~~Offer. In addition~~ Offer or for any period otherwise required by Applicable Law, (ii) if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, then, at the request of the Company, Merger Subsidiary shall, and Parent shall cause it to, extend the Offer for one (1) or more periods of up to ten (10) Business Days per extension to permit such Offer Condition to be satisfied or waived and (iii) if, as of the then-scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, Parent may, in its sole discretion (and without the consent of the Company or any other Person), extend the Offer (up to the ~~foregoing and excluded from any~~ End Date but not thereafter) on one or more occasions, for an additional period of up to ten (10) Business Days per extension, to permit such ~~limitations~~Offer Condition to be satisfied; provided that, ~~Sub also~~ unless otherwise agreed in writing by the Parties, no such extended Expiration Date shall be a date that is within five (5) Business Days after the date of a regularly scheduled payroll run of the Company. Notwithstanding anything to the contrary in this Section 2.01(c), in no event shall Merger Subsidiary be required or permitted to extend the Offer beyond the End Date. The Offer may ~~provide a “subsequent offering period”~~ be terminated prior to its then-scheduled Expiration Date, but only if this Agreement is validly terminated in accordance with ~~Rule 14d-11 under the Exchange Act~~Article 10. (bd) On Subject to the ~~date~~ terms and conditions set forth in this Agreement and to the satisfaction or waiver by Merger Subsidiary or Parent of ~~commencement~~ the Offer Conditions, Merger Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Merger Subsidiary to accept for payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). Promptly after the Acceptance Time, Merger Subsidiary shall pay the Offer Price for such Shares. (e) On the Offer Commencement Date, Parent and ~~Sub~~ Merger Subsidiary shall (i) file or cause to be filed with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a ~~Tender Offer Statement~~ tender offer statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The Schedule TO~~ ) that shall ~~include~~include the summary term sheet required thereby and, as exhibits, the ~~Offer to Purchase and~~ Offer, a form of letter of ~~transmittal and~~ transmittal, a form of summary advertisement and any schedule or form required to be filed pursuant to the Instructions to Schedule TO (collectively, and together with any amendments ~~and~~ or supplements thereto, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to ~~holders~~ beneficial owners of ~~Shares, in each case as and~~ Shares to the extent required by Applicable Law (including the 1934 Act). The Offer shall be conducted in compliance with Applicable Law (including the 1934 Act). (f) Parent and Merger Subsidiary shall cause the Offer Documents to (i) comply with the applicable ~~Law~~requirements of the 1934 Act and (ii) 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; provided, however, no covenant is made by Parent or Merger Subsidiary with respect to information supplied by the Company for inclusion in the Offer Documents. Parent and ~~Sub~~Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) at the time the Schedule 14D-9 is filed with the SEC not to 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. The Company shall promptly furnish to Merger Subsidiary 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 Section 2.01(e) or this Section 2.01(f). The Company and its counsel shall be given reasonable opportunity to review and comment on the ~~one hand~~Offer Documents prior to the filing thereof with the SEC, and Merger Subsidiary and Parent shall give reasonable and good faith consideration to any comments made by Company and its counsel. Each of Parent, Merger Subsidiary and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect or as otherwise required by Applicable Law. Parent and ~~Sub~~ Merger Subsidiary further agree ~~to take all steps necessary~~ to cause the Offer Documents as so corrected (if applicable) to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the other Offer Documents each time before any ~~amendment thereto before it~~ such document is filed with the SEC, and Parent and ~~Sub~~ Merger Subsidiary shall give ~~due~~ reasonable and good faith consideration to ~~all reasonable additions, deletions or modifications thereto suggested~~ any comments made by the Company and its ~~legal~~ counsel. ~~In addition,~~ Parent and ~~Sub agree to~~ Merger Subsidiary shall provide the Company and its counsel with (i) any ~~comments~~comments or other communications, whether written or oral, that Parent, ~~Sub~~ Merger Subsidiary or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or other Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of ~~such comments,~~ those comments or other communications 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 (ii) a reasonable opportunity to ~~review any responses to such comments or communications, and~~ participate in the response of Parent and ~~Sub~~ Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall ~~give due consideration to all reasonable views~~ be given), including by participating with Parent and ~~comments of~~ Merger Subsidiary or their counsel in any material discussions or meetings with the ~~Company and its legal counsel with respect thereto~~SEC. (cg) Subject in all respects to the other terms and conditions of this Agreement and the Offer Conditions, Parent shall ~~provide or~~ cause to be provided to ~~Sub promptly following the expiration~~ Merger Subsidiary on a timely basis all 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Subsidiary becomes obligated to purchase pursuant to the ~~Offer~~ Offer, and ~~that Sub is obligated~~ shall cause Merger Subsidiary to ~~accept for payment pursuant to the Offer and permitted to accept for payment~~ perform, on a timely basis, all of Merger Subsidiary’s obligations under ~~applicable Law~~this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Sizmek Inc.), Merger Agreement (Sizmek Inc.)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated in accordance with Section 8.1~~ Agreement, as promptly as practicable, and ~~none of the events described~~ in any event no more than ten Business Days, after the date of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, ~~Sub~~ Merger Subsidiary shall, and Parent shall cause ~~Sub~~ Merger Subsidiary to, ~~commence (~~commence, within the meaning of Rule ~~14d-2~~ l4d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act, the ~~“Exchange Act”)) the Offer within ten (10) business days following the date hereof~~Offer. The ~~obligations~~ obligation of ~~Sub~~ Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction ~~or waiver by Parent or Sub~~ of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex ~~III hereto.~~ A and to the terms and conditions of this Agreement; provided that Parent ~~expressly reserves the right to~~ and Merger Subsidiary may waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ (other than the Minimum Condition, which may not be waived without the prior written consent of the Company) and to may make ~~any other~~ changes in the terms and conditions of the ~~Offer; provided~~Offer except that, ~~however~~without the prior written consent of the Company, ~~that Sub shall not~~no change may be made to the form of consideration to be paid, ~~and Parent shall cause Sub not to,~~ no decrease in the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable, decrease~~ the number of Shares sought in the ~~Offer~~Offer may be made, ~~waive~~ no change which imposes additional conditions to the Offer or ~~change the Minimum Condition (as defined in Annex III hereto), modify or amend~~ modifies any of the conditions set forth in Annex ~~III hereto or otherwise modify or amend any other term or condition of the Offer, in each case~~ A 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~~ Shares may be made and neither Parent nor Merger Subsidiary may extend ~~the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”2.01(c), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and ~~Sub~~ Merger Subsidiary shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO ~~with respect~~ (as amended and supplemented from time to ~~the Offer (together with all amendments, supplements and exhibits thereto~~time, the “"Schedule TO”")~~. The Schedule TO~~ , which shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws, and shall contain the ~~Exchange Act~~offer to purchase relating to the Offer and forms of the related letter of transmittal and other appropriate documents (which documents, as amended or supplemented from time to time, are referred to herein collectively as the "Offer Documents"). The Parent and ~~Sub~~ the Merger Subsidiary further agree to ~~take all commercially reasonable steps necessary to cause~~ disseminate the Offer Documents to ~~be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to~~ holders of ~~Shares, in each case~~ Shares as and to the extent required by applicable ~~Law~~federal securities laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company's stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC. Parent and ~~Sub, on the one hand, and~~ Merger Subsidiary agree to provide the Company, on and to consult with the ~~other hand~~Company and its counsel regarding, ~~agree~~ any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and any responses thereto. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each ~~case~~ case, as and to the extent required by ~~applicable Law.~~ law. (c) The ~~Company~~ initial scheduled expiration date of the Offer shall be ~~given a reasonable opportunity to review and comment on~~ 20 Business Days after the ~~Schedule TO and any amendment thereto before it is filed with~~ date of its commencement. Notwithstanding the ~~SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition~~foregoing, 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company Merger Subsidiary shall have the right to ~~consult~~ extend the Offer (i) from time to time if, at any scheduled expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived, until such conditions are satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A is not satisfied or waived as a result of the occurrence of any of the events described in subparagraphs (b) or (g) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the request of the Company (but in no event shall Parent and Merger Subsidiary be obligated to extend expiration of the Offer pursuant to this clause (i) beyond August 15, 2004), (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) on one or more occasions (all such occasions aggregating not more than ten Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, all of the conditions to Merger Subsidiary's obligations to accept for payment Shares are satisfied or waived, but the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, ~~Sub~~ represents less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent's decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (d) and ~~their counsel prior~~ (f) on Annex A and of its right to ~~responding~~ terminate the Agreement under Sections 8.01(b), (d), (j) or (k), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any ~~such comments~~extended expiration date of the Offer, ~~either~~ and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in ~~written or oral form~~the aggregate (collectively, the "Subsequent Period") pursuant to Rule 14d-11 of the Exchange Act. ~~The Company~~ Notwithstanding the foregoing, Parent and ~~its legal counsel~~ Merger Subsidiary shall ~~be given a reasonable opportunity~~ also have the right to ~~review any responses~~ extend the Offer in accordance with Section 8.01(f). (d) Subject to ~~such comments or communications~~the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and ~~Sub~~ pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof; provided that Merger Subsidiary shall ~~give due consideration to~~ immediately accept and promptly pay for all ~~reasonable views and comments of the Company and its legal counsel with respect thereto. (c)~~ Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to ~~Sub promptly following~~ Merger Subsidiary on a timely basis 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Subsidiary becomes obligated to purchase pursuant to the Offer. (e) The Offer ~~and that Sub is obligated to accept for payment pursuant to~~ Price may be increased by the Parent without the consent of the Company, in which case the Offer ~~and permitted to accept for payment under~~ shall be extended, without the consent of the Company, as required by applicable ~~Law~~law.

Appears in 2 contracts

Samples: Merger Agreement (Brown Tom Inc /De), Agreement and Plan of Merger (Encana Corp)

The Offer. (a) ~~Provided that~~ Subject to this Agreement ~~shall~~ not ~~have~~ having been terminated in accordance with the provisions of Section 8.1 ~~and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~hereof, ~~Sub~~ Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, as promptly as practicable, but in no event later than five business days from the date of the public announcement of the terms of this Agreement or the Offer, commence an offer to purchase for cash (~~within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934,~~ as it may be amended ~~(together~~ in accordance with the ~~rules and regulations promulgated thereunder~~terms of this Agreement, the ~~“Exchange Act”~~"OFFER") all of the Company's outstanding shares of common stock, no par value (the "SHARES"), subject to the conditions set forth in Exhibit A hereto (the "CONDITIONS"), at a price of $13.00 per Share, net to the seller in cash. Subject only to the Conditions, Purchaser shall, and Parent shall cause Purchaser to, (i) ~~the Offer within ten (10) business days following the date hereof. The obligations of Sub to~~ accept for payment and to pay for all Shares tendered pursuant to the Offer as promptly as practicable following the expiration date of the Offer, and (ii) extend the period of time the Offer is open until the first business day following the date on which the Conditions are satisfied or waived in accordance with the provisions thereof; provided that (x) Purchaser shall be permitted but shall not -------- be obligated to extend the time the Offer is open if the Company is in breach in any material respect of its covenants or agreements contained herein and (y) Purchaser shall be permitted but shall not be obligated to extend the time the Offer is open if there is a reasonable likelihood that one or more of the Conditions cannot be satisfied; and provided, further, that the Purchaser shall -------- ------- in no event be obligated or permitted to extend the period of time the Offer is open beyond July 15, 1996. Neither Purchaser nor Parent will extend the expiration date of the Offer beyond the twentieth business day following commencement thereof unless one or more of the Conditions shall not be satisfied. Purchaser expressly reserves the right to amend the terms and conditions of the Offer; provided, that without the consent of the Company, no amendment may be made -------- which (i) decreases the price per Share or changes the form of consideration payable in the Offer, (ii) decreases the number of Shares sought, or (iii) imposes additional conditions to the Offer or amends any other term of the Offer in any manner adverse to the holders of Shares. Upon the terms and subject to the Conditions, 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 (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) ~~On the date~~ The Company will not, nor will it permit any of ~~commencement of the Offer~~its wholly owned Subsidiaries (as defined below) to, ~~Parent and Sub 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~~ tender into the Offer ~~(together with all amendments~~any Shares beneficially owned by it; provided, ~~supplements and exhibits thereto~~that Shares held beneficially or of record -------- by any plan, program or arrangement sponsored or maintained for the ~~“Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form~~ benefit of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements 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 employees of the Company ~~Board~~ or any of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents its Subsidiaries shall not be deemed to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested held by the Company ~~and its legal counsel. In addition, Parent and Sub agree to provide~~ regardless of whether the Company ~~with~~ has, directly or indirectly, the power to vote or control the disposition of such Shares. For purposes of this Agreement, "SUBSIDIARY" means, as to any ~~comments~~Person (as defined below), any corporation, partnership or joint venture, whether ~~written~~ now existing or ~~oral~~hereafter organized or acquired: (a) in the case of a corporation, ~~that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination~~ of which at least a majority of the ~~Offer, from~~ outstanding shares of stock having by the ~~SEC or its staff with respect~~ terms thereof ordinary voting power to elect a majority of the ~~Offer Documents, promptly upon receipt~~ board of directors 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~~ corporation (other than stock having 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 voting power solely by reason of the ~~Company and~~ happening of any contingency) is at the time directly or indirectly owned or controlled by such Person and/or one or more of its ~~legal counsel with respect thereto.~~ Subsidiaries or (cb) ~~Parent shall provide~~ in the case of a partnership or ~~cause to be provided to Sub promptly following the expiration~~ joint venture, in which such Person or a Subsidiary of such Person is a general partner or joint venturer or of which a majority of the ~~Offer~~ partnership or other ownership interests are at the time owned by such Person and/or one or more of its Subsidiaries. For purposes of this Agreement, "PERSON" means any ~~subsequent extension thereof~~individual, ~~as applicable~~corporation, 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 Lawcompany, voluntary association, partnership, joint venture, trust, unincorporated organization or other entity.

Appears in 2 contracts

Samples: Merger Agreement (Marriott International Inc), Merger Agreement (Forum Group Inc)

The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with ~~Section 8.1 and none~~ ARTICLE X, (ii) all of the ~~events described~~ conditions set forth in ~~any~~ clauses 2(a), (b), (c), (d), (e), (g), (h), and (i) of ~~paragraphs~~ ANNEX I shall then be satisfied (ain the case of clause 2(e), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or ~~(b) of Annex III hereto have occurred and be continuing (unless~~ waived by Parent ~~or Sub~~and Acquisition Sub and (iii) the Company has timely provided any information required to be provided by it pursuant to Section 2.01(h), as promptly as practicable after the date of this Agreement (and in any event within 10 Business Days of the date of this Agreement), Acquisition Sub ~~shall,~~ shall (and Parent shall cause Acquisition Sub to, ) commence (within the meaning 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 within ten~~ Offer. (10b) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent or and Acquisition Sub of the other conditions set forth in ~~Annex III hereto~~ANNEX I (collectively, the “Offer Conditions”), as soon as practicable after the Expiration Date, Acquisition Sub ~~shall,~~ shall (and Parent shall cause Acquisition Sub to, ) consummate the Offer in accordance with its ~~terms~~ terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the Offer. . (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains~~ in accordance with the terms set forth in this ~~Agreement~~ Agreement, the Minimum Condition and the ~~conditions set forth in Annex III hereto~~other Offer Conditions. Parent and Acquisition Sub expressly ~~reserves~~ reserve the right to ~~waive any of such conditions, to~~ (i) increase the Offer ~~Price~~ Price, (ii) waive any Offer Condition and to (iii) make any other changes in the terms and conditions of the Offer; provided, however, that ~~Sub shall not~~unless otherwise provided by this Agreement, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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~~ Company, Parent and Acquisition Sub shall not (~~such consent~~ A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be ~~authorized~~ purchased in the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects Stockholders generally, (F) waive, amend or otherwise change the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be terminated prior to the ~~Company Board~~ Expiration Date unless this Agreement is terminated in accordance with ARTICLE X. (d) Unless extended pursuant to and in accordance with the terms of ~~Directors~~ this Agreement, the Offer shall expire at 12:00 a.m. (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 Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or ~~a duly authorized committee thereof~~such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”)~~. Notwithstanding~~ . (e) The Offer shall be extended from time to time as follows: (i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied, or waived by Parent and Acquisition Sub if permitted hereunder, then Acquisition Sub shall extend the Offer for one or more periods of not more than 20 Business Days (subject to the foregoing, ~~but~~ the length of each such period to be determined by Parent in its sole discretion) or such other number of Business Days as the parties may agree (subject to the right of Parent and Acquisition Sub to waive any Offer Condition (other than the Minimum Condition) in accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with ~~Section 8.1~~ARTICLE X); and (ii) Acquisition Sub shall extend, and Parent shall cause Acquisition Sub ~~shall~~to extend, ~~upon~~ the ~~written request~~ Offer for the minimum period required by Applicable Law, interpretation or position of the SEC or its staff or the NYSE or its staff. (f) Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the time when Acquisition Sub accepts, for the first time, for payment Shares validly tendered and not properly withdrawn pursuant to the Offer (the “Offer Acceptance Time”), any change in the outstanding shares of capital stock of the Company ~~at least one business day before the then-scheduled expiration date~~shall occur by reason of any reclassification, ~~and may~~recapitalization, ~~without the consent~~ stock split or combination, exchange or readjustment of ~~the Company~~shares, ~~(i) extend~~ or any stock dividend thereon with a record date during such period, the Offer ~~beyond~~ Price shall be equitably adjusted to reflect such reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or stock dividend thereon. (g) In the ~~initial expiration date if~~event that this Agreement is terminated pursuant to the terms hereof, at Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any ~~scheduled (or extended) expiration~~ event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, ~~any of the conditions set forth in Annex III hereto (other than the Minimum Condition)~~ shall not ~~be satisfied or waived for up~~ acquire any Shares pursuant to ~~two periods of not more than ten (10) business days per extension, (ii) from time to time, extend~~ the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied~~and shall cause any depositary acting on behalf of Acquisition Sub to return, for up to two periods of ten (10) business days per extension or (iii) 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. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with ~~Rule 14d-11 under~~ Applicable Law, all tendered Shares to the ~~Exchange Act~~record holders thereof. (bh) On As promptly as practicable on the date of commencement of the ~~Offer~~Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Acquisition Sub shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The Schedule TO shall include, as exhibits,~~ ) that will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and ~~summary advertisement~~ (~~collectively~~ii) cause the Offer to Purchase and related documents to be disseminated to Stockholders. Parent and Acquisition Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together ~~with any amendments and supplements thereto,~~ constitute the “Offer Documents”~~). Subject~~ ) filed by either Parent or Acquisition Sub with the SEC to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with ~~all applicable provisions of~~ the Exchange ~~Act. Parent~~ Act and ~~Sub agree to take all commercially reasonable steps necessary to cause~~ the ~~Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as~~ rules and ~~to the extent required by applicable~~ regulations thereunder and other Applicable Law. ~~Parent and Sub~~Each of Parent, ~~on the one hand,~~ Acquisition Sub and the ~~Company, on the other hand, agree~~ Company agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Acquisition Sub further agree to ~~take~~ use all ~~steps necessary~~ reasonable efforts to promptly cause the Offer Documents as so corrected to be filed with the SEC and to promptly be disseminated to ~~holders of Shares~~Stockholders, in each case as and to the extent required by ~~applicable~~ Applicable Law. The Company shall promptly furnish or otherwise make available to Parent and Acquisition Sub or Parent’s legal counsel all information concerning the Company and its Subsidiaries and Stockholders that may be required in connection with any action contemplated by this Section 2.01(h), including communicating the Offer to the record and beneficial holders of the Shares. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to the filing thereof with the SEC, and Parent and Acquisition Sub ~~shall give due consideration~~ agree to ~~all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~consider in good faith any such comments. ~~In addition,~~ Parent and Acquisition Sub agree to provide the Company and its counsel with any ~~comments, whether written or oral, that~~ comments Parent, Acquisition Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of such comments, . Parent and ~~any written or oral responses thereto, and the Company~~ Acquisition Sub shall ~~have the right to consult with Parent, Sub and their counsel prior to responding~~ respond promptly to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the ~~Company and~~ SEC or its ~~legal counsel~~ staff with respect ~~thereto~~to the Offer Documents or the Offer. (ci) Parent shall ~~provide or~~ cause to be provided to Acquisition Sub ~~promptly following the expiration~~ on a timely basis all 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Acquisition Sub becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (Athlon Energy Inc.), Merger Agreement (Encana Corp)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this Agreement ~~shall~~ and this Agreement not ~~have~~ having been terminated in accordance with ~~Section 8.1 and none of the events described~~ Article 8, as promptly as practicable but in ~~any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~no event later than Thursday, June 3, 1999, Merger Sub ~~shall~~shall commence, and Parent and Purchaser shall cause Merger Sub toto commence, ~~commence (~~within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as ~~amended (together with~~ amended, and the rules and regulations promulgated ~~thereunder,~~ thereunder (the “"Exchange Act”")) , an offer to purchase all of the outstanding shares of common stock, par value $.01 per share (the "Common Stock"), of the Company together with the associated Rights (as hereinafter defined), at a price of $7.50 per share of Common Stock, net to the seller in cash (the "Offer"). Except where the context otherwise requires, all references herein to the shares of Common Stock shall include the associated Rights. The obligation of Merger Sub, and of Parent and Purchaser to cause Merger Sub, to commence the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub~~ and to accept for ~~payment~~ payment, and to pay for any ~~Shares validly~~ shares of Common Stock tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in ~~Annex III hereto~~Exhibit A (the "Offer Conditions"). Subject to to (b) Without the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the ~~Offer; provided~~Company, ~~however~~Parent, ~~that~~ Purchaser and Merger Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer,~~ (i) waive or ~~change~~ increase the Minimum Condition (as defined in ~~Annex III hereto~~Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) extend the Offer if all of the Offer Conditions are satisfied or waived, (v) change the form of consideration payable in the Offer, or (vi) amend, modify or ~~amend any of~~ add to the ~~conditions set forth in Annex III hereto~~ Offer Conditions or ~~otherwise modify or amend any other term or condition of~~ the ~~Offer, in each case~~ Offer 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Merger Sub ~~shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and~~ may, without the consent of the Company, ~~(i)~~ extend the Offer ~~beyond the initial expiration date if,~~ at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) time and from time to time~~, extend the Offer~~ : (i) if at the then scheduled ~~or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods~~ expiration date of ~~ten (10) business days per extension or (iii) extend~~ the Offer any of the Offer Conditions shall not have been satisfied or waived, such extension not to exceed such time as Merger Sub shall reasonably conclude is necessary for all such conditions to be satisfied or waived; (ii) for any period required by any statute or rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ Securities and Exchange Commission (“the "SEC~~”),~~ ") or ~~the~~ its staff ~~thereof,~~ applicable to the Offer~~. In addition~~ ; (iii) for any period required by applicable law in connection with an increase in the consideration to be paid pursuant to the ~~foregoing~~ Offer; and ~~excluded from~~ (iv) if all Offer Conditions are satisfied or waived but the number of shares of Common Stock tendered is less than 90% of the then outstanding number of shares of Common Stock, but only if Merger Sub waives all Offer Conditions, for an aggregate period of not more than 10 business days (for all such extensions under this clause (iv)) beyond the latest expiration date that would be permitted under clause (i), (ii) or (iii) of this sentence. Notwithstanding the foregoing, Parent, Purchaser and Merger Sub agree that if all of the Offer Conditions are not satisfied on any scheduled expiration date of the Offer then, provided that all such ~~limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On~~ conditions are and continue to be reasonably probable of being satisfied by the date of that is 30 business days after the commencement of the Offer, ~~Parent~~ Parent, Purchaser and Merger Sub 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~~ extend the Offer ~~(together with all amendments~~from time to time until such conditions are satisfied or waived, ~~supplements~~ provided that Parent, Purchaser and ~~exhibits thereto, the “Schedule TO”). The Schedule TO~~ Merger Sub shall ~~include, as exhibits,~~ not be required to extend the Offer ~~to Purchase and a form~~ beyond the date that is 30 business days after the commencement of ~~letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto,~~ the ~~“Offer Documents”)~~Offer. Subject to ~~Section 5.2,~~ and in accordance with the ~~Company hereby consents to the inclusion in~~ terms and conditions of the Offer ~~Documents of the recommendation~~ and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, this Agreement (but subject to the ~~Company’s compliance~~ right of termination in accordance with ~~Section 1.2(c)~~Article 8), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SECshall, and Parent and Purchaser shall cause Merger Sub ~~shall give due consideration to all reasonable additions~~to, ~~deletions or modifications thereto suggested by~~ accept for payment, in accordance with the Company and 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 the expiration or termination terms of the Offer, ~~from the SEC or its staff with respect to the Offer Documents, promptly upon receipt~~ all shares of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been Common Stock validly tendered and not withdrawn pursuant to the Offer ~~and that Sub is obligated to accept for payment pursuant to~~ as soon as practicable after the ~~Offer and permitted to accept for payment under applicable Law~~expiration of the Offer.

Appears in 2 contracts

Samples: Merger Agreement (M Acquisition Corp), Merger Agreement (Marcam Solutions Inc)

The Offer. (a) Provided that ~~this Agreement~~ (i) none of the events or circumstances set forth in paragraphs (b)(i) through (b)(vi) of Annex A hereto shall have occurred and be existing (and shall not have been ~~terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless~~ waived by ~~Parent or Sub)~~Purchaser) and (ii) the Company shall have complied with its obligations under Section 1.2 Company Actions, ~~Sub shall~~hereof, ~~and Parent~~ Purchaser shall ~~cause Sub to,~~ commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as ~~amended (together with~~ amended, and the rules and regulations promulgated ~~thereunder,~~ thereunder (the “Exchange Act”)) the Offer ~~within ten~~ to purchase all of the Shares (10other than the Currently Owned Shares) ~~business days following~~ at the Offer Price as promptly as reasonably practicable after the date hereof~~. The obligations~~ . (b) Subject to the terms of ~~Sub to accept for payment~~ the Offer and ~~to pay for any Shares validly tendered~~ this Agreement and ~~not withdrawn prior to~~ the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto, at the time of the expiration of the Offer (as it may be extended from time to time in accordance with ~~requirements of~~ this Section ~~1.1(a~~1.1, the “Expiration Time”)) , Purchaser shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer~~Offer promptly after it is permitted to do so under applicable Law. 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 of the Offer. (c) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be ~~made~~ subject only to the satisfaction (or waiver by ~~means~~ Purchaser) 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~~ A hereto~~. Parent~~ . (d) Purchaser expressly reserves the right to to: (i) waive any of ~~such conditions, to~~ the conditions set forth in Annex A hereto; (ii) increase the ~~Offer Price and to~~ price per Share payable in the Offer; and (iii) make any other changes in the terms of the Offer; provided, however, that ~~Sub shall not, and Parent shall cause Sub not to, decrease~~ no change may be made without the ~~Offer Price or change~~ prior written consent of the Company which: (1) decreases the price per Share payable in the Offer; (2) changes the form of consideration to be paid in ~~which any component of~~ the ~~Offer Price is payable, decrease~~ Offer; (3) reduces the maximum number of Shares sought to be purchased in the Offer~~, waive or change~~ ; (4) imposes conditions to the ~~Minimum Condition (as defined~~ Offer in addition to the conditions set forth in Annex ~~III~~ A hereto~~), modify~~ ; or (5) modifies or ~~amend~~ amends any of the conditions set forth in Annex ~~III~~ A hereto or ~~otherwise modify or amend any~~ makes other ~~term or condition~~ changes in the terms of the ~~Offer, in each case~~ Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the ~~Company Common Stock~~Expiration Time. (e) Notwithstanding the foregoing, ~~impose any conditions to the Offer that are not set forth on Annex III hereto, or~~ Purchaser shall: (i) extend the Offer beyond a the initial scheduled Expiration Time, which shall be 20 Business Days following the date ~~that is twenty-one (21) business days after~~ of 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~~ or any extension of the ~~Company (such consent~~ Expiration Time, if, at the scheduled Expiration Time, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be ~~authorized by the Company Board of Directors~~ satisfied or ~~a duly authorized committee thereof). Notwithstanding the foregoing~~waived, ~~but subject~~ subject, however, to the parties’ respective rights to terminate this Agreement ~~in accordance with~~ pursuant to Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, 7.1. Termination; and (ii~~) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~) extend the Offer for any period required by any rule, regulation or interpretation of the ~~United States~~ Securities and Exchange Commission (the “SEC”), ) or the staff ~~thereof,~~ thereof applicable to the Offer~~. In addition~~ . (f) Each extension of the Offer pursuant to paragraph (e)(i) of this Section 1.1 shall not exceed the lesser of five Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. (g) If, at the Expiration Time, all of the conditions to the ~~foregoing~~ Offer have been satisfied but the number of Shares validly tendered and ~~excluded from any such limitations~~not withdrawn pursuant to the Offer, ~~Sub also may~~ when taken together with the Currently Owned Shares, constitutes less than 90% of the Shares then outstanding, without the consent of the Company, Purchaser shall (subject to applicable Law) have the right to provide for a “subsequent offering period” ~~in accordance with~~ (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: (i) give the required notice of such subsequent offering period; and (ii) immediately accept for payment and promptly pay for all Shares validly tendered and not withdrawn as of such Expiration Time. (bh) On The Company and Purchaser agree that no Shares held by the Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. The Company has caused each of the officers and directors of the Company listed on Section 1.1(h) of the Company Disclosure Schedule to execute and deliver to Parent and Purchaser letter agreements, substantially in the forms attached hereto as Annex B (collectively, the “Equity Award Letter Agreements”), pursuant to which such officers and directors have, among other things, agreed to (i) not exercise outstanding options to purchase Company Common Stock through Closing and (ii) relinquish all rights under existing equity award agreements with the Company. (i) As promptly as practicable on the date of commencement of the Offer, Parent and ~~Sub~~ Purchaser shall file with the SEC~~, pursuant to Regulation M-A under the Exchange Act~~ : (~~“Regulation M-A”),~~ i) a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). ) with respect to the Offer; and (ii) a Schedule 13E-3. (j) The Schedule TO shall ~~include, as exhibits,~~ contain or incorporate by reference an offer to purchase and forms of the ~~Offer to Purchase and a form of~~ related letter of transmittal and ~~summary advertisement~~ all other ancillary Offer documents (collectively, together with ~~any amendments~~ all amendments, supplements and ~~supplements~~ exhibits thereto, the “Offer Documents”). ~~Subject to Section 5.2,~~ The Company shall promptly provide Parent with all information concerning the Company ~~hereby consents~~ that is required to ~~the inclusion~~ be included in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange ActDocuments. Parent and ~~Sub agree to take all commercially reasonable steps necessary to~~ Purchaser shall cause the Offer Documents to be ~~filed with the SEC and, subject~~ disseminated to the ~~Company’s compliance with Section 1.2(c), disseminated to~~ holders of ~~Shares, in each case~~ the Shares as and to the extent required by applicable ~~Law~~federal securities laws. Parent and ~~Sub~~Purchaser, on the one hand, and the Company, on the other hand, ~~agree to~~ shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub further agree to take all steps necessary to~~ Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each ~~case~~ case, as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect theretofederal securities laws. (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 2 contracts

Samples: Tender Offer and Merger Agreement (National Patent Development Corp), Tender Offer and Merger Agreement (Five Star Products Inc)

The Offer. (a) ~~Provided that~~ Subject to this Agreement ~~shall~~ not ~~have~~ having been terminated in accordance with the provisions of Section 8.1 ~~and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~hereof, ~~Sub~~ Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, ~~commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934~~as promptly as practicable, ~~as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10)~~ but in no event later than five business days ~~following~~ from the date ~~hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration~~ of the ~~Offer~~ public announcement of the terms of this Agreement or the Offer, commence an offer to purchase for cash (as it may be ~~extended~~ amended in accordance with ~~requirements~~ the terms of this Agreement, the "OFFER") all shares of common stock, $1.00 par value, of the Company (including the common stock purchase rights referred to in Section ~~1.1(a~~6.12 hereof (collectively, the "SHARES")) ~~shall be~~ outstanding immediately prior to the consummation of the Offer, subject ~~only~~ to the conditions set forth in ~~Annex III hereto~~Exhibit A hereto (the "CONDITIONS"), at a price of $29.00 per Share, net to the seller in cash. Subject to this Agreement not having been terminated in accordance with the ~~prior satisfaction or waiver by Parent or Sub~~ provisions of ~~conditions set forth in Annex III hereto~~Section 8.1 hereof and to the Conditions, ~~Sub~~ Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, ~~consummate the Offer in accordance with its terms and~~ accept for payment and pay for all Shares validly tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ pursuant to the Offer, and not withdrawn prior to the expiration date of the Offer, as promptly as practicable following the expiration date of the Offer. ~~The~~ 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 ~~made by means~~ obligated to extend the period of ~~an offer~~ time the Offer is open beyond August 15, 1997 or, if Purchaser has elected, in its judgment, to ~~purchase~~ 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 ~~“Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto~~"Final Termination Date"). ~~Parent~~ Purchaser expressly reserves the right to ~~waive any of such conditions, to increase the Offer Price and to make any other changes in~~ amend the terms and conditions of the Offer; provided, ~~however~~that without the consent of the Company, ~~that Sub shall not, and Parent shall cause Sub not to, decrease~~ no amendment may be made which (i) decreases the ~~Offer Price~~ price per Share or ~~change~~ changes the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, ~~decrease~~ (ii) decreases the number of Shares ~~sought in~~ sought, or (iii) imposes additional conditions to the ~~Offer, waive~~ Offer or ~~change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend~~ amends any other term ~~or condition~~ of the ~~Offer, in each case~~ Offer in any manner adverse to the holders of ~~the Company Common Stock, impose any conditions to the Offer~~ Shares (it being understood that ~~are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after commencement~~ extensions of the Offer ~~or the last extension (~~as ~~permitted in accordance with~~ contemplated by this Section ~~1.1), if any,~~ 1.1(a) are not adverse to the holders of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereofShares). Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub~~ Purchaser shall, ~~upon the written request of the Company at least one business day before the then~~in its judgment, have right to extend and re-~~scheduled expiration date, and may, without the consent of the Company, (i)~~ extend ~~the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of~~ the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, ~~extend~~ but in no event beyond November 15, 1997, if it believes that such extension is advisable in order to facilitate the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation orderly transition of the ~~United States Securities~~ business of the Company and ~~Exchange Commission (“SEC”), or~~ preserve and maintain the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ActCompany's business relationships. (b) On The Company will not, nor will it permit any of its Subsidiaries (as defined below) to, tender into the ~~date~~ Offer any Shares beneficially owned by it. For purposes of ~~commencement~~ this Agreement, "SUBSIDIARY" means, as to any Person (as defined below), any corporation, limited liability company, partnership or joint venture, whether now existing or hereafter organized or acquired: (i) in the case of a corporation, of which at least a majority of the ~~Offer, Parent and Sub shall file with~~ outstanding shares of stock having by the ~~SEC, pursuant~~ terms thereof ordinary voting power to ~~Regulation M-A under~~ elect a majority of the ~~Exchange Act~~ board of directors of such corporation (~~“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to~~ other than stock having such voting power solely by reason of the ~~Offer~~ happening of any contingency) is at the time directly or indirectly owned or controlled by such Person and/or one or more of its Subsidiaries or (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion ii) in the ~~Offer Documents~~ case of a limited liability company, partnership or joint venture, in which such Person or a Subsidiary of such Person is a managing member, general partner or joint venturer or of which a majority of the ~~recommendation and~~ partnership or other ownership interests are at the ~~approval~~ time owned by such Person and/or one or more of ~~the Company Board~~ its Subsidiaries. For purposes of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC andthis Agreement, ~~subject to the Company’s compliance with Section 1.2(c)~~"PERSON" means any individual, ~~disseminated to holders of Shares~~corporation, ~~in each case as and to the extent required by applicable Law. Parent and Sub~~company, ~~on the one hand~~voluntary association, ~~and the Company~~limited liability company, ~~on the~~ partnership, joint venture, trust, unincorporated organization or other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect theretoentity. (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 2 contracts

Samples: Agreement and Plan of Merger (BBN Corp), Merger Agreement (Gte Corp)

The Offer. (a) ~~Provided that~~ Upon the terms and subject to the conditions of this Agreement ~~shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs~~ (~~a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~including ARTICLE VIII), as promptly as practicable (but in no event later than August 20, 2010), Merger Sub shall, and Parent shall cause Merger Sub to, ~~commence (~~commence, within the meaning 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 within ten (10) business days following~~ Offer; provided, that the ~~date hereof. The obligations~~ Company agrees that no shares of ~~Sub to accept for payment and to pay for any Shares validly~~ Company Common Stock owned by the Company will be tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer ~~shall be made by means~~ are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) 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~~Exhibit A (as they may be amended in accordance with this Agreement, the “Offer Conditions”). (i) The initial Expiration Date (defined in Exhibit A) shall be 12:00 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rules 14d-1(g)(3) and 14d-2 under the Exchange Act). ~~Parent~~ Merger Sub expressly reserves the ~~right to waive~~ right, at any ~~of such conditions~~time, ~~to increase the~~ to, in its sole discretion, waive, in whole or in part, any Offer ~~Price and to make any other changes in~~ Condition or modify the terms of the Offer; provided, however, ~~that~~ that, without the prior written consent of the Company, Merger Sub shall ~~not~~not (A) reduce the number of shares of Company Common Stock subject to the Offer, ~~and Parent shall cause Sub not to, decrease~~ (B) reduce the Offer Price or change the form of consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, (C) change, modify or waive ~~or change~~ the Minimum Tender Condition (as defined in ~~Annex III hereto~~Exhibit A), ~~modify~~ (D) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (E) extend the Offer except as provided in this Section 1.1 for a period of five (5) Business Days on each such occasion or (F) otherwise amend ~~any of~~ the ~~conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case~~ Offer in any manner adverse to the holders of ~~the~~ Company Common ~~Stock~~Stock or that would reasonably be expected to prevent, ~~impose any conditions~~ materially delay or impair the ability of Parent or Merger Sub to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is 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 consummate the Offer, ~~whichever is later~~ the Merger or the other Transactions. (ii) Notwithstanding anything in this Agreement to the ~~“Expiration Date”~~contrary, Merger Sub (A) ~~except as set forth below~~may, in ~~each case without the prior written consent of the Company~~ its sole discretion (~~such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but~~ subject to the ~~parties’ respective rights to terminate this Agreement in accordance with~~ obligations of Parent and Merger Sub under Section ~~8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date,~~ 1.1(a)(ii)(B) and ~~may~~Section 1.1(a)(iii)), without ~~the~~ consent of the Company, ~~(i)~~ extend the Offer ~~beyond the initial expiration date~~ on one or more occasions for a period of five (5) Business Days on each such occasion if, at on any then-scheduled Expiration Date (~~or extended) expiration of the Offer~~defined in Exhibit A), any of the ~~conditions set forth in Annex III hereto (other than the Minimum Condition)~~ Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived ~~for up to two periods of not more than ten~~ and (10B) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) shall extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the United States Securities and Exchange Commission (the “SEC”), the staff thereof or the ~~staff thereof,~~ Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII. (iii) In addition to the ~~foregoing~~ extension obligation set forth in Section 1.1(a)(ii)(B), Parent and ~~excluded from~~ Merger Sub agree that if on any ~~such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement~~ scheduled Expiration Date of the Offer, ~~Parent and Sub shall file with~~ the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”), a~~ Minimum Tender ~~Offer Statement on Schedule TO with respect to the Offer (together with~~ Condition is not satisfied but all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). 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~~ other Offer Conditions set forth in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of SharesExhibit A are satisfied or, in ~~each case as and to the extent required by applicable Law. Parent and~~ Merger Sub’s sole discretion, ~~on the one hand~~waived, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and then Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SECshall, and Parent ~~and~~ shall cause Merger Sub ~~shall give due consideration to all reasonable additions~~to, ~~deletions or modifications thereto suggested by~~ on each of the ~~Company and its legal counsel. In addition~~first two such scheduled expiration dates, ~~Parent and Sub agree to provide~~ extend the ~~Company with any comments~~Offer for periods of five (5) Business Days on each such occasion; provided, ~~whether written or oral~~however, that ~~Parent,~~ this provision shall not require Merger Sub ~~or their counsel may receive from time~~ to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following extend the expiration of the Offer more than two times, for five (5) Business Days on each such occasion, and in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any ~~subsequent extension thereof~~time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII. (iv) On the terms and subject to the conditions of this Agreement, ~~as applicable~~Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all ~~funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been~~ shares of Company Common Stock validly tendered and not validly 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.~~as soon as

Appears in 2 contracts

Samples: Merger Agreement (Endo Pharmaceuticals Holdings Inc), Merger Agreement (Penwest Pharmaceuticals Co)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1 and none of the events described in any of paragraphs~~ 9.01, Purchaser shall (~~a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall,~~ and Parent shall cause ~~Sub~~ Purchaser to, ) commence ~~(within the meaning 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 ~~within ten~~ to purchase all of the Shares at the Per Share Amount as promptly as practicable after the date hereof but no later than six (106) ~~business days following~~ Business Days after the date hereof. The ~~obligations~~ obligation of ~~Sub~~ Purchaser to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered pursuant to the Offer will be subject to the satisfaction of each of the 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 and to make any other changes in the terms and conditions of the Offer, subject, in each case, to the provisions of Section 2.01(b). Notwithstanding the foregoing, Purchaser shall not be required to commence the Offer if, immediately prior to such commencement, anything shall have occurred that gives rise to a right of (1) Parent to terminate this Agreement or (2) Purchaser, pursuant to clause (a)(4) or (b) of Annex A hereto, to not accept for payment or pay for the Shares; provided, that for purposes of clause (2) above, references to any other date in clause (a)(4) and (b) of Annex A shall be deemed to be the date of the commencement of the Offer; and provided, further, that if Purchaser has not commenced the Offer in accordance with clause (1) or (2) above within forty-five (45) days of the date hereof, the Company shall have the right to terminate this Agreement pursuant to Section 9.01(e). (b) Purchaser shall not, without the prior written consent of the Company, (1) decrease the Per Share Amount or change the form of consideration payable in the Offer, (2) reduce the maximum number of Shares to be purchased in the Offer, (3) impose conditions to the Offer in addition to those set forth in Annex A, (4) modify, waive or change the Minimum Condition, (5) amend or modify any other term of the Offer in a manner adverse to the Company’s shareholders, or (6) extend the Offer in a manner other than in accordance with this Agreement. (c) Purchaser shall from time to time extend the Offer beyond the initial scheduled expiration date, which shall be twenty (20) Business Days following the commencement of the Offer, for five (5) Business Days in each instance (or for such different period to which the Company agrees in its reasonable discretion) if, at the scheduled expiration of the Offer (or any extension thereof), any of the conditions to Purchaser’s obligation to accept Shares for payment is not satisfied or waived. In addition, Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable interpretations or positions of the SEC or its staff. Further, if all of the conditions to the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn, together with the Shares held by Parent and Purchaser, if any, is less than ninety percent (90%) of the Fully Diluted Shares, then upon the expiration date of the Offer (or any extension thereof), Purchaser may provide “subsequent offering periods,” as such term is defined in, and in accordance with, Rule 14d-11 under the Exchange Act, for an aggregate period not to exceed twenty (20) Business Days (for all such extensions) and, if such subsequent offering periods are provided, Purchaser shall (1) give the required notice of such subsequent offering period and (2) immediately accept and promptly pay for all Shares tendered as of such applicable expiration date. (d) Promptly upon the satisfaction or waiver (subject to Section 2.01(b)) by Purchaser of the conditions set forth in Annex A, Purchaser shall accept for payment and pay for all Shares as promptly as practicable after the expiration date of the Offer (or any extension thereof) (the date of acceptance for payment, the “Acceptance Date”). 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 pursuant to the Offer. (e) Purchaser shall pay the Per Share Amount (less any Taxes required by applicable Law to be withheld) net to the seller in cash, without interest, 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. ~~The Offer~~ Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment 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 will be a condition of payment that the Certificate so surrendered 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 similar Taxes required by ~~means~~ reason of the payment of the Per Share Amount 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 inapplicable. (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 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO will contain or incorporate by reference an offer to purchase (the “Offer to Purchase”) ~~that contains the terms set forth in this Agreement~~ and ~~the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms~~ forms of the ~~Offer; provided, however, that Sub shall not,~~ related letter of transmittal and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 customary documents (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, as exhibits~~, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the “Offer Documents”). ~~Subject to Section 5.2~~Parent, Purchaser and the Company ~~hereby consents~~ agree to ~~the inclusion~~ correct promptly any information provided by any of them for use in the Offer Documents ~~of the recommendation~~ that shall have become false or misleading, and ~~the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ Parent and ~~Sub~~ Purchaser further agree to take all ~~commercially reasonable~~ steps necessary to cause the ~~Offer Documents~~ Schedule TO, as so corrected, to be filed with the ~~SEC and~~SEC, ~~subject~~ and the other Offer Documents, as so corrected, to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree~~ U.S. federal securities Laws to ~~promptly correct any information provided by it for use in the Offer Documents if and~~ give effect to the ~~extent that it~~ Offer. Purchaser shall ~~have become false or misleading in any material respect or as otherwise required by Law. Parent~~ give the Company and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given its counsel a reasonable opportunity to review and comment on upon the ~~Schedule TO~~ Offer Documents and ~~any amendment~~ all amendments and supplements thereto ~~before it is filed~~ prior to their filing with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and ~~Sub agree to~~ Purchaser shall provide the Company and its counsel with copies of any written comments, ~~whether written or oral~~and shall inform them of any oral comments, that Parent, ~~Sub~~ Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or the Offer ~~Documents,~~ Documents promptly ~~upon~~ after 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 such written responses ~~to such comments or communications,~~ and Parent and ~~Sub~~ Purchaser shall give due consideration to ~~all~~ the reasonable ~~views and comments of~~ additions, deletions or changes suggested thereto by the Company and its ~~legal counsel with respect thereto~~counsel. (cg) In the event this Agreement is terminated pursuant to Section 9.01 prior to the Acceptance Date, Parent and Purchaser shall ~~provide or cause to be provided to Sub~~ promptly ~~following the expiration of~~ terminate the Offer or without accepting any ~~subsequent extension thereof~~Shares previously tendered and Purchaser shall promptly return, ~~as applicable~~and shall cause any depository acting on behalf of Purchaser to return, all ~~funds necessary to promptly pay in full in cash the aggregate Offer Price for those~~ tendered 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~~registered holders thereof.

Appears in 2 contracts

Samples: Merger Agreement (Intelligroup Inc), Merger Agreement (Intelligroup Inc)

The Offer. (a) Provided that ~~this Agreement~~ nothing shall ~~not~~ have occurred that, had the Offer been ~~terminated in accordance with Section 8.1 and none~~ commenced, would give rise to a right to terminate the Offer pursuant to any of the ~~events described~~ conditions set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III hereto have occurred and be continuing (unless waived by Parent or Sub)~~I, as promptly as practicable after the date hereof, 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 (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days following~~ at the ~~date hereof~~Offer Price. ~~The obligations of Sub~~ Parent’s and Merger Sub’s obligation to accept ~~for payment~~ and to pay for ~~any Shares~~ shares of Company Common Stock tendered in the Offer shall be subject to the condition that there shall be validly tendered ~~and not withdrawn~~ in accordance with the terms of the Offer, prior to the scheduled expiration of the Offer (as it may be extended ~~in accordance~~ hereunder) and not withdrawn, a number of shares of Company Common Stock that, together with ~~requirements~~ the shares of ~~this Section 1.1(a~~Company Common Stock subject to a Sale and Support Agreement (the “Committed Shares”), represents at least two-thirds (or such lesser number as may be determined by Parent and Merger Sub) ~~shall be subject only~~ of all shares of Company Common Stock then outstanding (the “Minimum Condition”) and to the other conditions set forth in Annex ~~III hereto. Subject to the prior satisfaction or waiver by Parent or~~ I. Merger Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ and to make any ~~other changes~~ change in the terms of or conditions to the Offer; ~~provided~~provided that unless otherwise provided by this Agreement, ~~however~~the Sale and Support Agreement or previously approved by the Company in writing, (i) the Minimum Condition may not be waived below that ~~Sub shall not~~number of shares of Company Common Stock that, ~~and Parent shall cause Sub not to~~together with the Committed Shares, ~~decrease~~ represents a majority of all shares of Company Common Stock then outstanding, (ii) no change may be made that changes the form of consideration to be paid pursuant to the Offer, decreases the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable, decrease~~ the number of ~~Shares~~ shares of Company Common Stock sought in the Offer, ~~waive or change~~ imposes conditions to the ~~Minimum Condition (as defined~~ Offer in ~~Annex III hereto), modify or amend any of the conditions~~ addition to those set forth in Annex ~~III hereto~~ I, or otherwise ~~modify~~ amends or ~~amend any other term or condition of~~ modifies the ~~Offer, in each case~~ Offer in any manner materially adverse to the holders of ~~the~~ shares of Company Common ~~Stock, impose any conditions to~~ Stock and (iii) the Offer ~~that are~~ may not set forth on Annex III hereto, or extend the Offer beyond a date that is 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”) be extended except as set forth ~~below,~~ in ~~each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof~~this Section 1.1(a). ~~Notwithstanding the foregoing, but subject~~ Subject to the ~~parties’ respective rights to terminate~~ terms and conditions of this ~~Agreement~~ Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Section ~~8.1,~~ 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced. Merger 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)~~ shall extend the Offer ~~beyond the initial expiration date~~ (1) if, at ~~any~~ the scheduled (or ~~extended)~~ extended expiration date of the Offer, any of the conditions ~~set forth in Annex III hereto (other than~~ to the ~~Minimum Condition)~~ Offer shall not be have been satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, ~~(ii)~~ from time to time, ~~extend~~ until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) the reasonable determination by Parent that any such condition to the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition~~ is not ~~satisfied~~capable of being satisfied on or prior to the Walk-Away Date, ~~for up~~ provided that the inability to ~~two periods~~ satisfy such condition does not result from any breach of ~~ten~~ any provision of this Agreement by Parent or Merger Sub, and (10z) ~~business days per extension or~~ the Walk-Away Date, and (~~iii~~2) ~~extend the Offer~~ for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the Offer or any period required by applicable Law. Following expiration of the Offer~~. In addition to the foregoing and excluded from any such limitations~~, Merger Sub ~~also may~~ may, in its sole discretion, provide one or more subsequent offering periods (each, a “~~subsequent offering period”~~ Subsequent Offering Period”) in accordance with Rule 14d-11 ~~under~~ of the Exchange Act, if, as of the commencement of each such period, the number of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period, together with the Committed Shares, is less than that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of shareholders of the Company, in accordance with Section 5.16 of TBCA. Subject to the foregoing, including the requirements of Rule 14d-11, 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, all shares of Company Common Stock (A) validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes. (b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The Schedule TO~~ ) that shall ~~include~~include the summary term sheet required thereby and, as ~~exhibits~~exhibits or incorporated by reference thereto, the Offer to Purchase and ~~a form~~ forms of letter of transmittal and summary ~~advertisement~~ advertisement, if any, in respect of the Offer (collectively, together with any amendments ~~and~~ or supplements thereto, the “Offer Documents”)~~. Subject to Section 5.2~~, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be disseminated to holders of shares of Company Common Stock. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Sub for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Sub agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC ~~and, subject~~ and the Offer Documents as so corrected to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of ~~Shares~~shares of Company Common Stock, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable LawU.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any ~~amendment thereto before it~~ such document is filed with the SEC, and Parent and Merger Sub shall give ~~due~~ reasonable and good faith consideration to ~~all reasonable additions, deletions or modifications thereto suggested~~ any comments made by the Company and its ~~legal~~ counsel. ~~In addition,~~ Parent and Merger Sub ~~agree to~~ shall promptly provide the Company and its counsel with (A) any ~~comments~~comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of ~~such comments~~those comments or other communications, 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 (B) a reasonable opportunity to ~~review any responses to such comments or communications, and~~ 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 ~~give due consideration to all reasonable views~~ be given), including by participating with Parent and ~~comments of~~ Merger Sub or their counsel in any discussions or meetings with the ~~Company and its legal counsel with respect thereto~~SEC. (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 2 contracts

Samples: Merger Agreement (Acr Group Inc), Merger Agreement (Watsco Inc)

The Offer. (a) ~~Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none~~ On the date of commencement of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence~~ Offer (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the OfferGuarantor, Parent and Merger Sub ~~shall file~~ filed with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The~~ ) that incorporated by reference the Offer to Purchase and form of the related letter of transmittal, form of summary advertisement and such other customary documents included therein (the Schedule ~~TO shall include, as exhibits~~TO, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto~~such other documents pursuant to which the Offer is being made, the “Offer Documents”). . (b) Subject to ~~Section 5.2~~the conditions of this Agreement, as promptly as practicable but in no event later than three Business Days after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, amend the offer to purchase (as so amended and supplemented, the ~~Company hereby consents~~ “Offer to ~~the inclusion in the Offer Documents of the recommendation~~ Purchase”) and the ~~approval of the Company Board of Directors referred to in Section 3.20(a). The~~ other Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of SharesDocuments, in each case in accordance with the terms of this Agreement, (as so amended and supplemented, the “Amended Offer Documents”), including to reflect the conditions set forth in Annex I (the “Offer Conditions”) and file with the SEC the Amended Offer Documents. (c) Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of the Company) and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in each case subject to extending the Offer as required by applicable Law; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than the Offer Conditions, (E) amend or modify any of the Offer Conditions or any of the terms of the Offer in a manner adverse to the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby, (F) waive or change the Minimum Condition (provided, that Merger Sub may, at its sole discretion prior to the expiration of the Offer, waive or change the Minimum Condition to remove the proviso in the definition of such term requiring that the calculation of the total outstanding voting power of the Shares be made on a fully-diluted basis; provided further, that Merger Sub (i) provides written notification of such determination to the Company and (ii) provides any notification or modification to the Amended Offer Documents with respect thereto, to the extent required by applicable Law, in each case at least five Business Days prior to any scheduled Expiration Date) or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any Expiration Date, as extended pursuant to the terms of this Agreement), unless this Agreement is terminated in accordance with Article 8. Notwithstanding anything to the contrary in this Agreement, 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 Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement. (d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at 11:59 p.m. (New York City time) on the date that is the later of (i) December 14, 2012 or (ii) the date that is five (5) Business Days following the date of filing with the SEC of the Amended Offer Documents (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”). (e) The Offer shall be extended from time to time as follows: (i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then prior to the then scheduled Expiration Date Merger Sub shall extend the Offer for one or more periods of not more than five (5) Business Days each (or such other number of Business Days as the parties may agree) and ending no later than the Outside Date in order to permit the satisfaction of such conditions (subject to the right of Merger Sub to waive any Offer Condition, other than the Minimum Condition (except as provided in Section 1.1(c)), in accordance with this Agreement); provided, that nothing in this Section 1.1(e)(i) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 8 hereof; and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange LLC (the “NYSE”) or its staff, in each case applicable to the Offer, provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. (f) Merger Sub may (and the Amended Offer Documents shall reserve the right of Merger Sub to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) of not fewer than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer; provided, that Merger Sub shall offer a Subsequent Offering Period of three (3) Business Days at the request of the Company if, immediately following the expiration of the Offer, the Short Form Threshold has not been reached and cannot be reached through the immediate exercise of the Top-Up Option hereunder in accordance with its terms. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing. Parent and ~~Sub, on the one hand~~Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer. (g) 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 8. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, (ii) not acquire any Shares pursuant to the Offer and (iii) cause any depository acting on ~~the other hand, agree~~ behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered Shares to the registered holders thereof. (h) The Company shall cooperate fully in the preparation of the Amended Offer Documents to reflect the terms of this Agreement and the Company and its counsel shall be given a reasonable opportunity to review the Amended Offer Documents before they are filed with the SEC. Parent and Merger Sub agree that they shall cause the Amended Offer Documents and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Without limiting the generality of the foregoing, the Company will furnish to the Parent and Merger Sub the information relating to it required by the Exchange Act to be set forth in the Amended Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the Shares. Each of Parent and Merger Sub shall use its reasonable best efforts to resolve all SEC comments with respect to the Amended Offer Documents as promptly as reasonably practicable after receipt thereof. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Amended Offer Documents ~~if and to the extent that it~~ which shall have become false or ~~misleading in any material respect or as otherwise required by Law~~misleading. Each of Parent and Merger Sub ~~further agree~~ shall as soon as reasonably practicable notify the Company of the receipt of any comments from the SEC with respect to ~~take all steps necessary to cause~~ the Amended Offer Documents ~~as so corrected to be filed with~~ and any request by the SEC ~~and disseminated to holders of Shares, in each case as and~~ for any amendment to the ~~extent required by applicable Law~~Amended Offer Documents or for additional information and shall provide the Company with copies of all such comments and correspondence. ~~The~~ Prior to filing or mailing the Amended Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, each of Parent and Merger Sub shall provide the Company ~~shall be given~~ a reasonable opportunity to review and ~~comment~~ to propose comments on such document or response and shall, in good faith, consider and incorporate the ~~Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all~~ reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 ~~Company and its legal counsel with respect thereto~~Company. (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 2 contracts

Samples: Merger Agreement (Schiff Nutrition International, Inc.), Merger Agreement (Reckitt Benckiser Group PLC)

The Offer. (a) Provided that this Agreement shall not have been validly terminated in accordance with ~~Section 8.1 and none~~ its terms, as promptly as practicable after the date of ~~the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, Merger Sub shall, and ~~Parent~~ AEP shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated by the SEC under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the ~~Offer within ten (10) business days following the date hereof~~Offer. The obligations of Merger Sub to, and of AEP to cause Merger Sub to, accept for ~~payment~~ payment, and to pay ~~for~~ for, any Shares validly tendered and not properly withdrawn ~~prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a)) shall be~~ are subject only to (i) the non-waivable Minimum Tender Condition (as defined in Annex I) and (ii) the other conditions set forth in Annex ~~III hereto~~I (together with the Minimum Tender Condition, the “Offer Conditions”). ~~Subject to~~ The initial expiration date of the ~~prior satisfaction or waiver by Parent or Sub of conditions~~ Offer shall be midnight, New York City time, on the 20th Business Day (calculated as set forth in ~~Annex III hereto~~Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement of the Offer. Merger Sub shall not, and AEP shall cause Merger Sub not to, terminate or withdraw the Offer other than in connection with the termination of this Agreement in accordance with its terms. In the event that this Agreement is validly terminated pursuant to its terms, Merger Sub shall, and ~~Parent~~ AEP shall cause Merger Sub to, ~~consummate~~ promptly withdraw and terminate the Offer (and promptly after any termination or withdrawal of the Offer, Merger Sub shall return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof, 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~~ of the Offer and ~~the conditions set forth in Annex III hereto~~applicable Law). ~~Parent~~ Merger Sub expressly reserves the right to waive any ~~of such conditions,~~ condition to ~~increase~~ the Offer ~~Price and to make any~~ (other ~~changes in~~ than the Minimum Tender Condition) or modify the terms of the Offer~~; provided~~, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and maythat, without the consent of the ~~Company~~Special Committee, Merger Sub shall not (iA) ~~extend~~ reduce the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration~~ number of Shares subject to the Offer, (B) reduce the Offer Price, (C) add to the Offer Conditions or impose any other conditions to the Offer, (D) amend, modify or supplement any Offer Condition or any term of the ~~conditions~~ Offer set forth in ~~Annex III hereto~~ this Agreement, in each case, in a manner adverse in a material respect to the holders of the Shares (other than ~~the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension~~AEP and its Affiliates), (iiE) ~~from time to time, extend~~ change the form of consideration payable in the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension~~ or (~~iii~~F) otherwise amend, modify or supplement the Offer in any manner adverse in a material respect to the holders of the Shares (other than AEP and its Affiliates). (b) Merger Sub shall be permitted to (without the consent of the Company or of the Special Committee) and shall (and AEP shall cause Merger Sub to): (i) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the Offer~~. In addition~~ ; and (ii) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived (to the ~~foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period”~~ extent waivable in accordance with the terms of this Agreement), extend the Offer on one or more occasions in consecutive increments of up to ten Business Days each (or such longer period as the Special Committee and AEP may agree), until such time as such Offer Conditions are satisfied; provided, however, that (1) Merger Sub shall not be required to extend the Offer beyond the Outside Date or the termination of this Agreement in accordance with its terms and (2) if, at any date as of which the Offer is scheduled to expire, all of the Offer Conditions except for the Minimum Tender Condition are satisfied or have been waived (to the extent waivable in accordance with the terms of this Agreement), Merger Sub shall only be required to extend the Offer for one or more additional periods not to exceed an aggregate of ten Business Days. (c) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and AEP shall cause Merger Sub to, promptly after the expiration of the Offer, accept for payment and promptly (within the meaning of Rule ~~14d-11~~ 14e-1 under the Exchange Act) thereafter pay for, all Shares validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer (the “Acceptance Time”). AEP shall cause to be provided to Merger Sub all of the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. (bd) If, between the date of this Agreement and the Effective Time, the outstanding Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price and the Per Share Merger Consideration, as applicable, shall be appropriately adjusted. (e) On the date of commencement of the Offer, ~~Parent~~ AEP and Merger Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “Offer Documents”)~~. Subject to Section 5.2~~, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC andshall, ~~subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and~~ to the extent required by applicable ~~Law~~U.S. federal securities Laws, mail the Offer Documents to the holders of the Shares promptly after filing the Schedule TO with the SEC. ~~Parent~~ AEP and ~~Sub, on~~ Merger Sub shall be entitled to include the ~~one hand,~~ Special Committee Recommendation and the ~~Company~~Company Board Recommendation in the Offer Documents. Each of AEP and Merger Sub shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents and each of AEP, on Merger Sub and the ~~other hand, agree to~~ Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law. Parent~~ respect, and each of AEP and Merger Sub ~~further agree 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 disseminated to the holders of the Shares, in each case as and to the extent required by applicable ~~Law~~federal securities Laws. The ~~Company~~ Company, the Special Committee and their respective counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all~~ Offer Documents a reasonable additions, deletions or modifications thereto suggested by the Company and 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 filing such documents with the ~~expiration~~ SEC or ~~termination~~ dissemination of such documents to holders of the ~~Offer~~Shares, and AEP, Merger Sub and their counsel shall consider in good faith any comments thereto made by the Company, the Special Committee or their respective counsel. AEP and Merger Sub shall (i) provide the Company, the Special Committee and their respective counsel with any written comments or requests (and inform them of any oral comments or requests) for additional information AEP, Merger Sub or any of their representatives may receive from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments~~comments or requests, ~~and any written or oral responses thereto~~(ii) provide to the Company, ~~and~~ the ~~Company shall have the right to consult with Parent, Sub~~ Special Committee and their respective 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 and comment upon any written responses thereto a reasonable time prior to responding to such comments or ~~communications~~requests, (iii) consider in good faith any comments thereto made by the Company, the Special Committee or their respective counsel, and ~~Parent~~ (iv) consult (to the extent practicable) with the Company, the Special Committee and/or their respective counsel prior to making any material oral responses or engaging in any material discussions with the SEC. AEP and Merger Sub shall ~~give due consideration~~ use reasonable best efforts to ~~all reasonable views~~ permit the Company, the Special Committee and/or their respective counsel to participate with AEP and ~~comments of~~ Merger Sub or their representatives in any material discussions or meetings with the ~~Company and its legal counsel with respect thereto~~SEC. (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 2 contracts

Samples: Merger Agreement (Icahn Enterprises L.P.), Merger Agreement (Federal-Mogul Holdings Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article X hereof and so long as none of the events ~~described~~ set forth in ~~any of paragraphs~~ Annex A hereto (athe "Tender Offer Conditions") ~~or (b) of Annex III hereto~~ shall have occurred and be are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent and 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 (together with the rules and regulations promulgated thereunder, the “Exchange Act”))~~ the Offer ~~within ten (10)~~ at the Offer Price. The initial expiration date for the Offer shall be the twentieth business ~~days~~ day following the ~~date hereof~~commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any ~~Shares validly~~ shares of Common Stock tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver~~ Tender Offer Conditions, any of which may be waived by Parent or Merger Sub ~~of conditions set forth~~ in ~~Annex III hereto~~their sole discretion; PROVIDED, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, howeverHOWEVER, that Merger Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer,~~ waive ~~or change~~ the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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~~ Company. The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (~~such consent~~ i) reduce the number of shares of Common Stock to be ~~authorized by~~ purchased in the ~~Company Board~~ Offer, (ii) reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of ~~Directors~~ consideration payable in the Offer or ~~a duly authorized committee thereof)~~(v) make any other change in the terms of the Offer which is materially adverse to the holders of Common Stock. Notwithstanding the ~~foregoing~~foregoing sentence, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Merger 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, (iA) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the shares of Common Stock have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to ~~time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for~~ time up to ~~two periods~~ a maximum of ~~ten~~ an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (~~10) business days per extension or (iii~~C) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the Offer. ~~In addition to~~ Notwithstanding the ~~foregoing and excluded from any such limitations~~foregoing, ~~Sub also~~ (x) the Offer may ~~provide a “subsequent offering period” in accordance with Rule 14d-11 under~~ not, without the ~~Exchange Act. (b) On~~ Company's written consent, be extended beyond the date of ~~commencement~~ termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, ~~Parent and~~ the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Sub 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~~ extend the Offer ~~(together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer~~ from time to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC andtime, subject to the ~~Company’s compliance with Section 1.2(c)~~right of Parent, ~~disseminated~~ Merger Sub or the Company to ~~holders of Shares, in each case as and~~ terminate this Agreement pursuant to the ~~extent required by applicable Law~~terms hereof. ~~Parent~~ Upon the terms and ~~Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and~~ subject to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination conditions of the Offer, from the SEC or its staff with respect to the 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, Merger 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 communicationsshall, and Parent ~~and~~ shall cause Merger Sub ~~shall give due consideration~~ to, promptly purchase all shares of Common Stock which are validly tendered on or prior to ~~all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following~~ the expiration of the Offer and not withdrawn. Parent shall provide, or ~~any subsequent extension thereof~~cause to be provided, ~~as applicable,~~ to Merger Sub on a timely basis all funds necessary to ~~promptly~~ accept for payment, and pay ~~in full in cash the aggregate Offer Price for those Shares~~ for, all shares of Common Stock that ~~have been validly tendered and not withdrawn~~ Merger Sub becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (Bison Acquisition Corp), Merger Agreement (Entertainment Inc)

The Offer. (a) ~~Provided that~~ As promptly as practicable (but in no event more than twelve (12) business days after the date of this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or SubAgreement), ~~Sub shall, and~~ Parent shall ~~cause Sub to,~~ commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder, the “Exchange Act”~~"EXCHANGE ACT")) a tender offer (the "OFFER") for all of the outstanding shares of Common Stock (other than for shares owned by the Parent and the Offer ~~within ten~~ Affiliates at the time of the Offer) (10the "SHARES") ~~business days following~~ at a price of $16.25 per Share, to the ~~date hereof.~~ seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "OFFER PRICE"), subject to the conditions set forth in Section 3.3 below and ANNEX A hereto. (b) The obligations of ~~Sub~~ Parent to commence the Offer and to accept for payment and to pay for any Shares validly tendered ~~and not withdrawn~~ on or prior to the expiration of the Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ and not withdrawn shall be subject only to the conditions set forth in ~~Annex III~~ ANNEX A hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the ~~“Offer to Purchase”~~"OFFER TO PURCHASE") ~~that contains~~ containing the terms set forth in this Agreement and the conditions set forth in ~~Annex III~~ ANNEX A hereto. Parent ~~expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub~~ shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) terminate the Offer, except in accordance with the terms of ANNEX A attached hereto or (ii) extend the expiration of the Offer ~~beyond~~ except as specifically provided herein. (c) Parent expressly reserves the right to modify the terms of the Offer; PROVIDED, THAT, without the Special Committee's prior written consent, Parent shall not decrease the Offer Price or decrease the number of Shares sought, change the form of consideration or amend any other condition of the Offer in any manner materially adverse to the holders of the Shares (other than with respect to insignificant changes or amendments and subject to the penultimate sentence of this Section 1.1(c)) or impose additional conditions without the prior written consent of the Special Committee; PROVIDED, HOWEVER, that, if on the initial scheduled expiration date ~~if, at any scheduled (or extended) expiration~~ of the Offer, ~~any of the conditions set forth in Annex III hereto~~ which shall be twenty (~~other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10~~20) business days ~~per extension~~after the date that the Offer is commenced, ~~(ii)~~ all conditions to the Offer shall not have been satisfied or waived, Parent may, from time to ~~time~~time until such time as all such conditions are satisfied or waived, in its sole discretion, extend the ~~Offer if at~~ expiration date; PROVIDED, FURTHER, HOWEVER, that the ~~scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods~~ expiration date of ~~ten (10) business days per extension or (iii) extend~~ the Offer ~~for any period~~ may not be extended beyond ninety (90) calendar days after commencement of the Offer without the Special Committee's prior written consent. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by ~~any rule~~applicable Law (as hereinafter defined) in connection with such increase, ~~regulation or interpretation~~ in each case without the consent of the Special Committee. In addition, Parent may make available a "subsequent offering period," in accordance with Rule 14d-11 of the United States Securities and Exchange Commission (“the "SEC”"), ~~or the staff thereof, applicable to the Offer~~of not greater than twenty (20) business days. ~~In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b)~~ On the ~~date of commencement of the Offer, Parent~~ terms and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false prior satisfaction or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination waiver of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration conditions of the Offer ~~or any subsequent extension thereof~~and this Agreement, ~~as applicable,~~ Parent shall accept for payment and pay for 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 as soon as practicable after the expiration of the Offer. (d) The parties understand and agree that ~~Sub is obligated to accept for payment pursuant to~~ the Offer Price has been calculated based upon the accuracy of the representation and ~~permitted to accept for payment under applicable Law~~warranty set forth in Section 4.2(a) and that, in the event the number of outstanding shares of Common Stock exceeds the amounts specifically set forth in Section 4.2(a) (including, without limitation, as a result of any stock split, reverse stock split, stock dividend, including any dividend or distribution of securities convertible into stock or stock equivalent of the Company, recapitalization, or other like change occurring after the date of this Agreement), the Offer Price shall be appropriately adjusted. The provisions of this Section 1.1(d) shall not, however, affect the representation and warranty set forth in Section 4.2(a).

Appears in 2 contracts

Samples: Merger Agreement (Westfield Holdings LTD /), Merger Agreement (Westfield America Management LTD)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article VII and none of the events ~~described~~ set forth in ~~any of paragraphs~~ Annex A hereto (athe “Tender Offer Conditions”) ~~or (b) of Annex III hereto~~ shall have occurred and be ~~continuing (unless waived by Parent or Sub)~~existing, ~~Sub shall~~as promptly as practicable after public announcement of this Agreement, ~~and~~ Parent shall cause Sub ~~to,~~ to commence (within the meaning of Rule 14d-2 promulgated under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub~~ to ~~accept for payment~~ acquire any and ~~to pay for any~~ all Shares ~~validly tendered and not withdrawn prior to the expiration of~~ at the Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto~~Price. Subject to the ~~prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III~~ Minimum Condition and subject to the other Tender Offer Conditions hereto, Sub ~~shall, and Parent~~ shall ~~cause Sub to,~~ use all reasonable efforts to consummate the Offer in accordance with its terms and to accept for payment and pay for ~~all~~ Shares tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer~~Offer as soon as Sub is legally permitted to do so under applicable Law. With respect to such Shares, the Offer Price shall be net to the seller thereof in cash, subject to reduction for any applicable state, federal or foreign withholding or transfer taxes and otherwise subject to the terms and conditions of this Agreement. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains~~ and shall be subject to the Minimum Condition and the other Tender Offer Conditions and shall reflect, as appropriate, the other terms set forth in this ~~Agreement and~~ Agreement. The obligation of Sub to accept for payment or pay for any Shares tendered pursuant to the ~~conditions set forth in Annex III hereto~~Offer will be subject only to the satisfaction of the Tender Offer Conditions. ~~Parent~~ Sub expressly reserves the right to waive any ~~of such conditions,~~ condition to ~~increase~~ the Offer ~~Price and to make any other changes~~ or amend or modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the ~~terms~~ Offer, (iii) reduce the number of Shares subject to the Offer, (iv) waive the Minimum Condition, (v) modify or add conditions to the Tender Offer Conditions which otherwise adversely affect the holders of the Shares, or (vi) except as provided in Section 1.1(b), extend the Offer. The Offer shall remain open until 5:00 p.m., New York City time, on the day immediately following the twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer, unless Sub shall have extended the period of time for which the Offer is open, in accordance with Section 1.1(b) or as may be required by applicable Law. (b) If on the scheduled expiration date of the Offer (or as such date may be extended pursuant to this Section 1.1(b)), all conditions to the Offer have not been satisfied or waived, Sub may, from time to time, in its sole discretion, extend the expiration date of the Offer; provided, however, that Sub ~~shall not, and Parent shall cause Sub not to, decrease~~ may only extend the Offer ~~Price~~ for a period not to exceed ten business days (a “Ten Day Extension”) and that Sub may not make more than three Ten Day Extensions without the prior consent of the Company, which consent shall not be unreasonably withheld, delayed or ~~change~~ conditioned. If, immediately prior to the ~~form of consideration in which any component~~ expiration date of the Offer ~~Price is payable~~(as it may be extended), ~~decrease~~ the ~~number~~ Shares tendered and not withdrawn pursuant to the Offer constitute less than 90% of the outstanding Shares ~~sought~~ (on a fully diluted basis), Sub may extend the Offer, on one or more occasions, for an aggregate period of not more than ten business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer; provided, however, that Sub may not extend the Offer pursuant to this sentence beyond September 15, 2003. In addition, Sub may extend the Offer for any reason for up to two business days; provided that no more than three such extensions are permitted and provided further that if all the conditions to the Offer have been met as of the expiration of the Offer, Sub may not extend the Offer pursuant to this sentence beyond September 15, 2003. Sub may, but shall not have the obligation to, increase the amount it offers to pay per Share in the Offer, ~~waive or change~~ and the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any manner adverse Offer may be extended 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 date that is twenty-one (21) business days after commencement of the Offer or the last extension (as permitted extent required by Law in ~~accordance~~ connection with ~~this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below~~such increase, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company~~, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended)~~ . Following expiration of the Offer, ~~any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension~~Sub may, ~~(ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition~~ but is not ~~satisfied~~obligated to, for up to two periods of ten (10) business days per extension or (iii) 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. In addition to the foregoing and excluded from any such limitations, Sub also may provide make available a “subsequent offering ~~period”~~ period in accordance with ~~Rule 14d-11 under~~ the Exchange Act. (bc) On the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under~~ Securities and Exchange Commission (the ~~Exchange Act (~~“~~Regulation M-A~~Commission”), ) a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (~~together with all amendments, supplements and exhibits thereto,~~ the “Schedule TO”)) and all other necessary documents and make all deliveries, mailings and telephone notices required by Rule 14d-3 under the Exchange Act with respect to the Offer. The Schedule TO ~~shall~~ will include, as exhibits, the Offer to ~~Purchase and~~ Purchase, a form of letter of transmittal and ~~summary advertisement (collectively,~~ any other documents required by the Exchange Act. The Schedule TO together with all exhibits thereto and any amendments ~~and~~ or supplements ~~thereto,~~ thereto are hereinafter referred to collectively as the “Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents~~ .” Each of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the ~~other hand~~other, ~~agree to~~ shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and each of Parent and Sub ~~further~~ shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the Commission and to be disseminated to the Company’s stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given the opportunity to review and suggest comments to the Offer Documents before they are filed with the Commission. In addition, Parent and Sub agree to provide the Company and its counsel with any comments, whether written or oral, that Parent or Sub may receive from time to time from the Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments or other communications and shall give the Company and its counsel the opportunity to review and suggest comments to any such communications. (d) Parent and Sub will take all steps necessary to cause the Offer Documents ~~as so corrected~~ to be ~~filed with the SEC and~~ disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect theretofederal securities laws. (ce) Parent shall provide or cause to be provided to Sub ~~promptly following~~ on a timely basis 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~~ purchase any Shares that ~~have been~~ Sub becomes obligated to purchase pursuant to the Offer. Sub shall, and Parent shall cause Sub to, pay for all Shares validly tendered and not withdrawn pursuant to the Offer ~~and~~ that Sub is becomes obligated to ~~accept for payment~~ purchase pursuant to the Offer ~~and permitted to accept for payment under applicable Law~~as soon as practicable after the expiration of the Offer.

Appears in 2 contracts

Samples: Merger Agreement (Mercator Software Inc), Merger Agreement (Ascential Software Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 7.1 hereof and ~~none~~ nothing shall have occurred that would result in a failure to satisfy any of the ~~events described~~ conditions set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III hereto have occurred and be continuing (unless waived by Parent or Sub)~~I hereto, ~~Sub shall~~as promptly as practicable after the date hereof, ~~and~~ Parent shall cause Sub ~~to,~~ to commence and Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) an offer to purchase all of the issued and outstanding shares of the Company Common Stock at a price of $7.00 per share (the "Offer Price") net to the seller in cash, but subject to any withholding required by law (the "Initial Offer"). (b) The Initial Offer shall be subject to the conditions set forth in Annex I hereto. Sub shall not except as expressly contemplated hereby, without the prior written consent of the Company, make any change in the terms or conditions of the Initial Offer that is adverse to the holders of the Company Common Stock in any material respect, decrease the Offer Price or impose material conditions to the Initial Offer other than those set forth in Annex I hereto (it being agreed that a waiver by Sub of any condition, in its sole discretion, shall not be deemed to be adverse to the holders of the Company Common Stock); provided that: (i) if on any scheduled expiration date of the Initial Offer all conditions to the Initial Offer shall not have been satisfied or waived, the Initial 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 Sub to be necessary to satisfy the unsatisfied conditions; (ii) the Initial Offer may be extended by Sub without the consent of the Company 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 applicable to the Initial Offer; and (iii) if at any scheduled expiration date of the Initial Offer all conditions to the Initial Offer shall have been satisfied but less than a number of shares of Company Common Stock that, together with the ~~rules~~ number of shares of Company Common Stock owned by Parent and ~~regulations promulgated thereunder~~Sub, represents ninety percent (90%) of the ~~“Exchange Act”~~outstanding shares of Company Common Stock, on a fully-diluted basis, shall have been tendered into the Initial Offer, Sub shall be entitled to (but not required to) extend the Initial Offer from time to time without the consent of the Company (but in no event beyond one week after the date on which all of the conditions set forth in Annex I have been satisfied) in order to permit Sub to solicit additional shares to be tendered into the Initial Offer. Notwithstanding the foregoing, Sub may not, without the consent of the Company, extend the scheduled expiration date of the Initial Offer beyond September 28, 2000; provided, however, Sub may extend the scheduled expiration date of the Initial Offer beyond such date for such period of time as is reasonably expected by Sub to be necessary to satisfy the unsatisfied conditions if Sub has not purchased shares of Company Common Stock pursuant to the Initial Offer due to a delay in the consummation of the Initial Offer resulting from (i) review of the Offer Documents (as hereinafter defined) by the SEC, (ii) receipt of regulatory approvals required under applicable Law (as hereinafter defined), including, but not limited to approvals under the HSR Act (as hereinafter defined) or (iii) the existence of any of the conditions contained in Sections (i) or (ii) of Annex I hereto. Sub shall, unless Sub shall have in its sole discretion exercised its right to extend the termination date of the Initial Offer ~~within ten (10) business days following~~ pursuant to this Section 1.1(b), on the ~~date hereof. The obligations~~ terms and subject to the prior satisfaction or waiver of ~~Sub to~~ the conditions of the Initial Offer, accept for payment and ~~to pay for any Shares~~ purchase, as soon as permitted under the terms of the Initial Offer, all shares of the Company Common Stock validly tendered and not withdrawn prior to the expiration date of the Initial Offer. It is agreed that the conditions to the Initial Offer ~~(as it~~ are solely for the benefit of Sub and may be ~~extended~~ asserted by Sub regardless of the circumstances giving rise to any such condition (including any action or inaction by Sub) or may, but need not, be waived by Sub, in ~~accordance with requirements of this Section 1.1(a)~~whole or in part at any time and from time to time, in its sole discretion. (c) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Initial 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~~ is subject to the conditions set forth in Annex ~~III~~ I hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (As soon as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 practicable on Annex III hereto, or extend the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.Initial

Appears in 2 contracts

Samples: Merger Agreement (Cfi Proservices Inc), Merger Agreement (Harland John H Co)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ its terms and none of the ~~events described~~ conditions set forth in ~~any of paragraphs (a) or (b) of Annex III~~ ANNEX A hereto shall have occurred ~~and~~ or be ~~continuing (unless waived by Parent or Sub)~~continuing, ~~Sub shall, and~~ Parent shall cause Merger Sub to, and Merger Sub shall, commence (within the meaning 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 ~~within ten (10) business days following~~ as promptly as reasonably practicable after the date hereof. The ~~obligations~~ obligation of Merger Sub to accept for payment Shares tendered pursuant to the Offer shall be subject to (i) the condition that at least the number of Shares that when added to Shares already owned by Parent and its direct and indirect wholly owned Subsidiaries, if any, and without giving effect to ~~pay for~~ 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 ~~Shares~~ 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 of the Offer (~~as it may~~ the "Minimum Condition") and (ii) there shall not have occurred or be ~~extended in accordance with requirements~~ continuing any of ~~this Section 1.1(a)) shall be subject only to~~ the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III ANNEX A hereto. Parent expressly reserves the right to waive any of such ~~conditions~~condition, to increase the ~~Offer Price~~ Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that ~~Sub shall not, and~~ no change may be made by Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 which (~~such consent~~ A) decreases the Per Share Amount or changes the form of consideration payable in the Offer, (B) waives the Minimum Condition, (C) reduces the maximum number of Shares to be ~~authorized by~~ purchased in the ~~Company Board~~ Offer, (D) imposes conditions to the Offer in addition to those set forth in ANNEX A hereto or (E) amends any term of ~~Directors~~ the Offer in any other manner materially adverse to the holders of the Shares or ~~a duly authorized committee thereof)~~the likelihood of the consummation of the Merger. Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Merger 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~~ scheduled expiration ~~date~~ date, which shall be twenty (20) Business Days following the commencement of the Offer, if, at ~~any~~ the scheduled ~~(or extended)~~ expiration of the Offer, any of the conditions ~~set forth in Annex III hereto (other than the Minimum Condition)~~ to Merger Sub's obligation to accept for payment Shares shall not be satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, (ii~~) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“~~SEC”), or the staff thereof, applicable to the Offer~~. In addition~~ , or (iii) extend the Offer for an aggregate period of not more than ten (10) Business Days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions (including the Minimum Condition) to Merger Sub's obligations to accept for payment Shares are satisfied or waived, but the number of Shares validly tendered and not withdrawn pursuant to the ~~foregoing~~ Offer totals less than ninety percent (90%) of the issued and ~~excluded from any such limitations~~outstanding Shares on a fully diluted basis. Following expiration of the Offer, ~~Sub also may~~ the Purchaser may, in its sole discretion, provide a “subsequent offering ~~period”~~ period (a "Subsequent Offering Period") in accordance with Rule 14d-11 under the Exchange Act. The Per Share Amount shall, subject to any applicable withholding of Taxes, be $1.00 net to the sellers of the Shares in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered and not withdrawn as promptly as practicable following satisfaction of the Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the applicable rules of the SEC and the terms and conditions of the Offer, Merger Sub expressly reserves the right to delay payment for Shares for the sole purpose of complying in whole or in part with applicable Laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. If the payment equal to the Per Share Amount in cash is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of such amount to a Person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Merger Sub that such Taxes either have been paid or are not applicable. If this Agreement is terminated by Parent or by the Company, Parent shall cause Merger Sub to, and Merger Sub shall, terminate promptly the Offer. (b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent ~~and Sub~~ shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the ~~Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”)~~Offer. The Schedule TO shall ~~include, as exhibits~~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 (the Schedule TO, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the “"Offer Documents”"). ~~Subject to Section 5.2~~Each of Parent, Merger Sub and the Company ~~hereby consents~~ agrees to ~~the inclusion~~ correct promptly any information provided by it for use in the Offer Documents ~~of the recommendation~~ that shall have become false or misleading in any material respect, and ~~the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ Parent and Merger Sub further agree to take all ~~commercially reasonable~~ steps necessary to cause the ~~Offer Documents~~ Schedule TO, as so corrected, to be filed with the ~~SEC and~~SEC, ~~subject~~ and the other Offer Documents, as so corrected, to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. Parent and ~~Sub, on~~ Merger Sub shall give the ~~one hand,~~ Company and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given its counsel a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is~~ Offer Documents prior to such documents being filed with the ~~SEC, and~~ SEC or disseminated to holders of Shares. Parent and Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel with copies of any ~~comments, whether written or oral, that~~ comments Parent, Merger Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and ~~any written or oral responses thereto, and~~ shall provide 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~~ with a reasonable opportunity to ~~review any responses~~ participate in the formulation of the response of Parent or Merger Sub to such ~~comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto~~comments. (c) Subject to applicable law and the rules and regulations of The Nasdaq Stock Market, Inc. and/or the OTC Bulletin Board, in the event that, following a Subsequent Offering Period, if any, the Purchaser has acquired less than ninety percent (90%) of the Shares, but not less than seventy-five percent (75%) of the Shares, the parties have entered into a Stock Option Agreement (the "Stock Option Agreement"), pursuant to which the Company has granted to the Purchaser an option to purchase that number of Shares equal to the number of Shares that, when added to the number of Shares owned by the Purchaser and its affiliates immediately following expiration of the Subsequent Offering Period, shall constitute ninety percent (90%) of the Shares then outstanding on a fully diluted basis. (d) Parent shall provide or cause to be provided to Merger Sub ~~promptly following~~ on a timely basis the ~~expiration of the Offer or any subsequent extension thereof, as applicable, all~~ funds necessary to ~~promptly~~ accept for payment, and to pay ~~in full in cash the aggregate Offer Price for those~~ for, any and all Shares that ~~have been validly tendered and not withdrawn pursuant to the Offer and that~~ Merger Sub is becomes obligated to accept for ~~payment~~ payment, and pay for, pursuant to the ~~Offer and permitted to accept for payment under applicable Law~~Offer.

Appears in 2 contracts

Samples: 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 ~~Section 8.1~~ Article VII, and ~~none~~ (ii) all of the ~~events described~~ conditions set forth in ~~any of~~ paragraphs (ac)(i) or through (bc)(vi) of Annex ~~III hereto have occurred~~ I shall then be satisfied (in the case of (x) paragraphs (c)(ii) through (c)(v), giving effect only to representations and ~~be continuing~~ warranties made as of dates prior to such time and (~~unless~~ 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,~~ shall (and Parent shall cause Merger Sub to) commence, ~~commence (~~within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as ~~amended (together with~~ amended, and the rules and regulations promulgated ~~thereunder,~~ thereunder (the “Exchange Act”)) , the Offer ~~within ten~~ to purchase all the outstanding Shares at the Offer Price. (10b) ~~business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior~~ Subject to the ~~expiration~~ satisfaction of the ~~Offer (as it may be extended in accordance with requirements~~ Minimum Condition and the satisfaction, or waiver by Merger Sub, of ~~this Section 1.1(a)) shall be subject only to~~ the other conditions set forth in Annex ~~III hereto. Subject to the prior satisfaction or waiver by Parent or~~ I, Merger Sub ~~of conditions set forth in Annex III hereto, Sub shall,~~ shall (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 properly withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer~~Offer as soon as practicable, but in any event no later than three Business Days, after the Expiration Date. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the holder in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.2(e). (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that ~~contains~~ describes the terms ~~set forth~~ and conditions of the Offer in accordance with this ~~Agreement~~ Agreement, including the Minimum Condition and the other conditions set forth in Annex ~~III hereto. Parent~~ I. Merger Sub expressly reserves the right to ~~waive any of such conditions, to~~ increase the Offer Price ~~and~~ or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise expressly provided in this Agreement or as previously approved by the Company in writing, Merger Sub shall not, and Parent shall ~~cause~~ not permit Merger Sub ~~not~~ to, (i) decrease the Offer ~~Price or~~ Price, (ii) change the form of consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend, modify or waive ~~or change~~ the Minimum ~~Condition~~ Condition, (~~as defined in~~ v) add any additional conditions to those set forth on Annex ~~III hereto), modify~~ I or amend any of the conditions and requirements to the Offer set forth in Annex ~~III hereto~~ I in a manner adverse to the holders of Shares, (vi) extend the Expiration Date in a manner other than in accordance with this Agreement or (vii) otherwise amend, modify or ~~amend~~ supplement any ~~other term or condition~~ of the ~~Offer,~~ terms of the Offer in ~~each case in any~~ a manner adverse to the holders of the ~~Company Common Stock~~Shares. (d) Unless extended in accordance with the terms of this Agreement, ~~impose any conditions to~~ the Offer ~~that are not set forth~~ shall expire at midnight (New York City time) on ~~Annex III hereto, or extend~~ the ~~Offer beyond a~~ date that is ~~twenty-one (21) business days after~~ 20 Business Days following the commencement of the Offer or (the ~~last extension (as permitted~~ “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this ~~Section 1.1)~~Agreement, ~~if any~~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 ~~the Offer~~this Agreement, ~~whichever is later (~~the “Expiration Date”~~) except as~~ ). If on any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions set forth ~~below~~in Annex I) have not been satisfied, or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten Business Days each, the length of each such period to be determined by Parent in its sole discretion, in ~~each case~~ order to permit the satisfaction of such conditions; provided, however, that Merger Sub shall not be required to, and shall not without the Company’s prior written consent, extend the Offer beyond August 20, 2015 (the “Outside Date”). 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 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~~ Company, except if this Agreement is terminated pursuant to Article VII. If this Agreement is terminated pursuant to Article VII, Merger Sub shall (~~such consent to be authorized~~ and Parent shall cause Merger Sub to) promptly, irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by ~~the Company Board of Directors~~ Merger Sub, or ~~a duly authorized committee thereof). Notwithstanding the foregoing, but subject~~ this Agreement is terminated prior to the ~~parties’ respective rights~~ 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 ~~terminate this Agreement~~ return, in accordance with ~~Section 8.1~~applicable Law, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable all tendered Shares to the ~~Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~registered holders thereof. (bf) On As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC, ~~pursuant to Regulation M-A~~ in accordance with Rule 14d-3 under the Exchange ~~Act (“Regulation M-A”)~~Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and ~~exhibits thereto~~exhibits, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to ~~Purchase and~~ Purchase, a form of letter of transmittal and a form of summary advertisement (collectively, together with any amendments and ~~supplements thereto~~supplements, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Merger Sub agree ~~to take all commercially reasonable steps necessary~~ to cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of Shares, ~~in each case~~ as and to the extent required by ~~applicable Law~~the Exchange Act. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer ~~Documents~~ Documents, if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable Law. , and Parent and Merger Sub ~~further~~ agree to ~~take all steps necessary to~~ promptly cause the Offer ~~Documents~~ Documents, as so ~~corrected~~ corrected, to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by ~~applicable Law~~the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review ~~and comment on~~ the Schedule TO and ~~any amendment thereto~~ the Offer Documents before ~~it is~~ they are filed with the SEC, and Parent and Merger Sub shall give due consideration to ~~all~~ the reasonable additions, deletions or ~~modifications thereto~~ changes suggested by the Company and its ~~legal~~ counsel. In addition, Parent and Merger Sub ~~agree to~~ shall provide the Company and its counsel with copies of any written comments, ~~whether written or oral~~and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or the Offer ~~Documents,~~ Documents promptly ~~upon~~ after 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~~responses. The Company and its ~~legal~~ counsel shall be given a reasonable opportunity to review any such written responses ~~to such comments or communications,~~ and Parent and Merger Sub shall give due consideration to ~~all~~ the reasonable ~~views and comments of~~ additions, deletions or changes suggested by the Company and its ~~legal counsel with respect thereto~~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.” (cg) Parent shall provide or cause to be provided to Merger Sub ~~promptly following~~ on a timely basis 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~~ purchase any Shares ~~that have been validly tendered and not withdrawn~~ Merger Sub becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (Valeant Pharmaceuticals International, Inc.), Merger Agreement (Salix Pharmaceuticals LTD)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article VII, by the later of (i) ten business days after the date of this Agreement and ~~none of~~ (ii) the ~~events described in any of paragraphs~~ date on which the Company files its Annual Report on Form 10-K for the 2015 fiscal year with the SEC (~~a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~as defined below), Merger Sub ~~shall,~~ 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~~ Act) the Offer. (~~together~~ b) In accordance with the ~~rules~~ terms and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements conditions of this ~~Section 1.1(a)) shall be~~ Agreement, and subject only to the satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Annex ~~III hereto. Subject to~~ I (collectively, the ~~prior satisfaction or waiver by Parent or~~ “Offer Conditions”) and, for the avoidance of doubt, no other conditions, Merger Sub ~~of conditions set forth in Annex III hereto, Sub shall,~~ shall (and Parent shall cause Merger Sub to), ~~consummate~~ at or as promptly as practicable following the ~~Offer in accordance with its terms and~~ Expiration Time, irrevocably accept for payment ~~and~~ (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in any event within three business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for all ~~Shares~~ shares of Company Common Stock validly tendered and not properly withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the Offer. Parent shall 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 Offer. (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains~~ in accordance with the terms set forth in this Agreement and subject only to the ~~conditions set forth in Annex III hereto~~Minimum Condition and the other Offer Conditions. ~~Parent~~ Merger Sub expressly reserves the right to ~~waive any of such conditions, to~~ (i) increase the Offer ~~Price~~ Price, (ii) waive any Offer Condition other than the Minimum Condition and to (iii) make any other changes in to the terms and conditions of the Offer not inconsistent with the terms of ~~the Offer~~this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (A) decrease the Offer ~~Price or~~ Price, (B) change the form of consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, ~~waive or change~~ (C) decrease the ~~Minimum Condition~~ maximum number of shares of Company Common Stock sought to be purchased in the Offer, (~~as defined in Annex III hereto)~~D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or ~~amend~~ supplement any of the ~~conditions set forth~~ Offer Conditions (i) in ~~Annex III hereto~~ a manner that adversely affects the holders of Company Common Stock or that makes such Offer Condition more difficult to satisfy or (ii) in any other circumstance, without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by Section 1.01(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or ~~amend~~ supplement any ~~other term or condition~~ of the ~~Offer, in each case~~ other terms of the Offer in any manner adverse to the holders of ~~the~~ Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, ~~impose any conditions to~~ unless this Agreement is terminated in accordance with Article VII. (d) The Offer shall expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the ~~Offer that are not set forth on Annex III hereto, or extend the Offer beyond a~~ date that is ~~twenty-one (21)~~ 20 business days ~~after~~ (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer ~~or the last extension~~ (~~as permitted in accordance with this Section 1.1), if any,~~ such initial expiration date and time of the Offer, ~~whichever is~~ the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.01(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 ~~Date~~Time”). (e) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject Subject to the parties’ respective rights to terminate ~~this~~ the Agreement ~~in accordance with Section 8.1~~pursuant to Article VII, ~~Sub~~ the Offer may or shall, ~~upon the written request of the Company~~ as applicable, be extended from time to time as follows: (i) if, at ~~least one business day before~~ the then-scheduled ~~expiration date~~Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and ~~may~~Parent shall cause Merger Sub to, ~~without~~ extend the ~~consent~~ Offer on one or more occasions in consecutive increments of five business days each (each such increment to end at 5:00 p.m., New York City time, on the last business day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that (A) Merger Sub shall not be required to extend the Offer to a date later than the Outside Date (for the avoidance of doubt, as the Outside Date may be extended pursuant to Section 7.01(b)(i) and (B) if the Marketing Period has ended and the sole then-unsatisfied Offer Condition is the Minimum Condition, (i1) Merger Sub may (but shall not be required to) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for on up to two ~~periods~~ occasions in consecutive increments of ~~not more than ten (10)~~ five business days ~~per extension~~each (each such increment to end at 5:00 p.m., New York City time, on the last business day of such increment) (iior such other duration as may be agreed to by Parent and the Company) ~~from time to time~~and (2) except as provided in clause (1) of this Section 1.01(e)(i), Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer if at the ~~scheduled or extended Expiration Date~~ Company shall have requested in writing that Merger Sub so extend the ~~Minimum Condition is not satisfied, for up to two periods of ten~~ Offer; (10ii) ~~business days per extension or (iii)~~ Merger Sub shall extend the Offer for ~~any~~ the minimum period required by ~~any rule~~applicable Law, ~~regulation~~ interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission~~ SEC or its staff or The NASDAQ Stock Market LLC (“~~SEC~~NASDAQ”)) or its staff; (iii) if, at the then-scheduled Expiration Time, the Company brings or ~~the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from~~ shall have brought any ~~such limitations, Sub also may provide a “subsequent offering period”~~ action in accordance with ~~Rule 14d-11 under~~ Section 8.08 to enforce specifically the ~~Exchange Act~~performance of the terms and provisions of this Agreement by Parent or Merger Sub, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the court presiding over such action, as the case may be, but, in any event, not past the Outside Date (for the avoidance of doubt, as the Outside Date may be extended pursuant to Section 7.01(b)(i)); and (iv) if , at the then-scheduled Expiration Time, (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and the Closing (other than as a result of a breach by Parent or Merger Sub of any of their representations, warranties or covenants set forth in Sections 4.05 and 5.04 of this Agreement) and (B) Parent and Merger Sub acknowledge and agree in writing that (1) the Company may terminate this Agreement pursuant to Section 7.01(d)(iii) and receive the Parent Termination Fee and (2) all Offer Conditions set forth in paragraphs (d), (e), (f) and (h) of Annex I will be deemed to have been satisfied or waived at the Expiration Time of the Offer after giving effect to any extension pursuant to this clause (iv), Merger Sub shall have the right in its sole discretion to extend the Offer on up to four occasions in consecutive increments of five business days each (each such increment to end at 5:00 p.m., New York City time, on the last business day of such increment) (or such other duration as may be agreed to by Parent and the Company); provided that Merger Sub shall not be permitted to extend the Offer to a date later than the Outside Date (for the avoidance of doubt, as the Outside Date may be extended pursuant to Section 7.01(b)(i)). Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.01(e). Notwithstanding the foregoing, in the event that, as a result of the extension of the Offer in accordance with the provisions of this Section 1.01(e), the Expiration Time would occur on 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. (bf) On 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 adjustment 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. (g) In the event that this Agreement is terminated in accordance with Article VII, Merger Sub shall (and Parent shall 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 cause any depository acting on behalf of Parent or Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof. (h) As promptly as practicable on the date of commencement of the ~~Offer~~Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments~~exhibits, amendments and supplements ~~and exhibits~~ thereto, the “Schedule TO”~~). The Schedule TO shall include, as exhibits,~~ ) that will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal ~~and summary advertisement~~ (~~collectively~~the Schedule TO, together with ~~any amendments and supplements thereto~~all documents included therein pursuant to which the Offer will be made, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares~~shares of Company Common Stock. Each of Parent, ~~in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand,~~ Merger Sub and the ~~Company, on the other hand, agree~~ Company agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent ~~and Sub~~ further ~~agree~~ agrees to ~~take~~ use all ~~steps necessary~~ reasonable efforts to promptly cause the Offer Documents as so corrected to be filed with the SEC and to promptly be disseminated to holders of ~~Shares~~shares of Company Common Stock, in each case as and to the extent required by applicable Law. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub or Parent’s legal counsel any information concerning the Company and the Company’s Subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to the filing thereof with the SEC~~, and~~ . Parent and ~~Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and~~ Merger Sub agree to provide the Company and its counsel with any comments (including a summary of any oral comments~~, whether written or oral,~~ ) that Parent, Merger Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of such comments, . Each of Parent and ~~any written or oral responses thereto, and~~ Merger Sub shall give the Company and its counsel a reasonable opportunity to participate in the response to any comments of the SEC or its staff with respect to the Offer Documents and shall ~~have the right to consult with Parent, Sub and their counsel prior to responding~~ respond promptly to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (ci) ~~Parent shall provide or cause~~ Parent, Merger Sub and the paying agent with respect to ~~be provided to Sub promptly following the expiration of~~ the Offer ~~or any subsequent extension thereof, as applicable, all funds necessary~~ shall be entitled to ~~promptly pay in full in cash~~ deduct and withhold from the ~~aggregate~~ Offer Price ~~for those Shares that have been validly tendered and not withdrawn~~ payable pursuant to the Offer such amounts as are required to be deducted and ~~that Sub is obligated to accept for payment pursuant~~ withheld with respect to the ~~Offer and permitted to accept for~~ making of such payment under ~~applicable~~ the Internal 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

Samples: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~7.1, Merger Sub shall, and Parent shall cause Merger Sub toto (i) as promptly as practicable following the execution of this Agreement, and in any event within three Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing) commence (within the meaning 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 ~~within ten (10) business days following~~ to purchase all outstanding Shares at the ~~date hereof~~Per Share Amount. The Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable federal backup withholding or stock transfer taxes payable by the seller. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject to only ~~to the~~ those conditions set forth in Annex III ~~hereto~~(the “Tender Offer Conditions”). ~~Subject to~~ The Company agrees that no Shares held by the ~~prior satisfaction~~ Company or ~~waiver by Parent or Sub~~ any of ~~conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with~~ its ~~terms and accept for payment and pay for all~~ Subsidiaries (other than any Shares held on behalf of third parties) will be tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ pursuant to the Offer. ~~The~~ For the avoidance of doubt, the parties hereto agree that Restricted Shares may be tendered in the Offer ~~shall~~ and be ~~made~~ acquired by ~~means~~ Parent or Merger Sub pursuant to the Offer. (b) Parent on behalf 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~~ Merger Sub expressly reserves the right from time to time, subject to Sections 1A.1(c) and (d), to waive any ~~of such conditions, to~~ Tender Offer Condition or increase the ~~Offer Price and to make any other changes in~~ Per Share Amount, provided that without the ~~terms~~ prior written consent of the ~~Offer; provided~~Company, ~~however, that~~ Merger Sub shall not, and Parent shall cause Merger Sub not ~~to,~~ to (i) decrease the ~~Offer Price~~ Per Share Amount or change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) amend or waive ~~or change~~ satisfaction of the Minimum Condition (as defined in Annex ~~III hereto~~III), (iv) impose additional conditions to the Offer, (v) make any change in the Offer that would require an extension or delay of the then-current Expiration Date (other than an increase in the Per Share Amount), (vi) modify or amend ~~any of~~ the ~~conditions set forth in Annex III hereto~~ Tender Offer Conditions (other than to waive such Tender Offer Conditions, other than the Minimum Condition) or ~~otherwise~~ (vii) modify or amend any other term ~~or condition~~ of the Offer, in ~~each~~ the case of this clause (vii), in any manner (A) 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension Shares or (~~iii~~B) ~~extend~~ which would reasonably be expected to result in, individually or in the ~~Offer for any period required by any rule~~aggregate, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a ~~“subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~Parent Material Adverse Effect. (bc) On the date of commencement of the Offer, Parent and Merger Sub shall file or cause to be filed with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (together with all ~~amendments,~~ amendments and supplements ~~and exhibits~~ thereto, the “Schedule TO”~~). The Schedule TO shall include, as exhibits,~~ ) with respect to the Offer which shall contain the offer to ~~Purchase~~ purchase (the “Offer to Purchase”) and ~~a form of~~ related letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (~~collectively, together~~ collectively with any supplements or amendments ~~and supplements~~ thereto, the “Offer Documents”). ~~Subject to Section 5.2~~Parent, Merger Sub and the Company ~~hereby consents~~ each agrees promptly to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect ~~or as otherwise required by Law.~~ and Merger Sub shall, and Parent ~~and~~ further agrees to cause Merger Sub ~~further agree to~~ 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 and to the extent required by applicable ~~Law~~Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on ~~the Schedule TO and~~ any Offer Documents (including each amendment ~~thereto~~ or supplement thereto) before ~~it is~~ they are filed with the SEC. Merger Sub shall, and Parent ~~and~~ agrees to cause Merger Sub ~~shall give due consideration to all reasonable additions~~to, ~~deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to~~ provide the Company with (in writing, if written), and to consult with the Company regarding, any ~~comments, whether~~ comments (written or oral, ) that may be received by Parent, Merger Sub or their counsel ~~may receive from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents as promptly ~~upon~~ as practicable after 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 formthereof. The Company and its ~~legal~~ counsel shall be given a reasonable opportunity to review any ~~responses~~ such written and oral comments and proposed responses. (d) The Offer to Purchase shall provide for an expiration date of the 20th Business Day (as defined in Rule 14d-1 under the Exchange Act, “Business Day”) following (and including the day of) the commencement of the Offer (such ~~comments~~ date, or ~~communications~~such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this agreement, the “Expiration Date”). Merger Sub shall not and Parent agrees that it shall cause Merger Sub to not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, Merger Sub may, without Parent receiving the consent of the Company, (A) extend the Expiration Date for any period required by applicable rules and regulations of the SEC or the New York Stock Exchange applicable to the Offer or (B) elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act. So long as the Offer and this Agreement have not been terminated pursuant to Section 7.1, if at any scheduled Expiration Date, the Tender Offer Conditions shall not have been satisfied or earlier waived, Merger Sub shall, and Parent shall cause Merger Sub to extend the Offer and the Expiration Date to a date that is not more than five Business Days after such previously scheduled Expiration Date; provided that Merger Sub shall ~~give due consideration~~ not and Parent shall not be required to cause Merger Sub to extend the Offer beyond the End Date. In the event the Acceptance Date occurs but Parent does not acquire a sufficient number of Shares to enable a Short Form Merger to occur, Merger Sub shall, and Parent shall cause Merger Sub to provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 15 Business Days, in accordance with Rule 14d-11 under the Exchange Act; provided that Merger Sub shall, and Parent shall cause Merger Sub to immediately accept and promptly pay for all ~~reasonable views~~ Shares tendered during the initial offering period and ~~comments of~~ immediately accept and promptly pay for all Shares tendered during such subsequent offering period, in each case in accordance with Rule 14d-11 under the ~~Company and its legal counsel with respect thereto~~Exchange Act. (ce) Subject solely to the satisfaction or waiver by Merger Sub in accordance with Section 1A.1(b) of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub, as soon as possible after the expiration of the Offer, to accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”). Parent shall provide or cause to be provided to Merger Sub ~~promptly following~~ on a timely basis 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Sub becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Elkcorp), Agreement and Plan of Merger (CGEA Investor, Inc.)

The Offer. (a) ~~Provided that~~ Subject to the conditions of this ~~Agreement shall not have been terminated~~ Agreement, as promptly as practicable, but in ~~accordance with Section 8.1 and none~~ no event later than five business days after the date of the ~~events described in any~~ public announcement of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of ~~Rule~~ the applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment or pay for any Company Common Shares tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A hereto. The initial expiration date of the Offer shall be January 3, 2001 (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder, the “~~"Exchange Act”")~~) the Offer within ten (10) business days following the date hereof~~). ~~The obligations of~~ Merger Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any ~~of such conditions,~~ condition to ~~increase~~ the Offer ~~Price and~~ or to ~~make any other changes in~~ modify the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in its sole discretion; provided, however, that without the consent of the Company, Merger Sub shall not (i) reduce the number of Company Common Shares subject to the Offer, (ii) reduce the price per Company Common Share to be paid pursuant to the Offer or change the form or time of delivery of consideration, (iii) amend or waive the Minimum Tender Condition (as defined in Exhibit A hereto) or add to the conditions set forth in Exhibit A hereto, (iv) except as provided below in this Section 1.1(a), extend the Offer, or (v) otherwise amend the terms of the Offer 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof)Shares. Notwithstanding the foregoing, ~~but~~ Merger Sub may, at any time and from time to time, and, in each case, subject to ~~the parties’ respective rights to terminate this Agreement in accordance with~~ Section ~~8.1~~8.1 hereof, ~~Sub shall, upon the written request~~ take one or more of the ~~Company at least one business day before the then-scheduled expiration date, and may,~~ following actions without the consent of the Company, : (iA) extend the Offer ~~beyond~~ for one or more periods of time that Merger Sub reasonably believes are necessary to cause the ~~initial~~ conditions to the Offer to be satisfied, if at the scheduled expiration date ~~if, at any scheduled (or extended) expiration~~ of the ~~Offer,~~ Offer any of the conditions ~~set forth in Annex III hereto (other than the Minimum Condition) shall~~ to Merger Sub's obligation to accept Company Common Shares for payment is not be satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, until such time as all such conditions are satisfied or waived, (~~ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~B) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof that is applicable to the ~~Offer. In addition~~ Offer or (C) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable date that would otherwise be permitted under clause (A) or (B) of this sentence, if, as of such date, all of the conditions to Merger Sub's obligation to accept Company Common Shares for payment (including the Minimum Tender Condition) are satisfied or waived, but the number of Company Common Shares validly tendered and not withdrawn pursuant to the ~~foregoing~~ Offer equals less than 90% of the outstanding Company Common Shares (determined on a fully diluted basis for all outstanding stock options, convertible securities and ~~excluded from~~ any other rights to acquire Company Common Stock on the date of purchase). Without limiting the rights of Merger Sub to extend the Offer pursuant to the immediately preceding sentence, Parent and Merger Sub agree that if (I) (x) all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, (y) such ~~limitations~~conditions are reasonably capable of being satisfied within 30 days after the initial expiration date of the Offer and (z) the Company is in compliance with all of its covenants in this Agreement, or (II) any rule, regulation, interpretation or position of the SEC or the staff thereof that is applicable to the Offer requires an extension of the Offer, then Merger Sub ~~also may~~ shall extend the Offer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions of the Offer to be satisfied, until all such conditions are satisfied or waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the 30th day after the initial expiration date of the Offer, unless otherwise required pursuant to (II) above. Subject to Section 8.1 hereof, Merger Sub may, without the consent of the Company, elect to provide a “subsequent offering ~~period”~~ period for the Offer in accordance with Rule 14d-11 under the Exchange Act, following its acceptance of Company Common Shares for payment pursuant to the Offer. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all Company Common 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. (b) On As soon as practicable on the date of commencement of the Offer, Merger Sub shall, and Parent ~~and~~ shall cause Merger Sub ~~shall~~ to, file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (such Tender Offer Statement, together with all ~~amendments,~~ amendments and supplements ~~and exhibits~~ thereto, the “"Schedule TO”")~~. The Schedule TO~~ , which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule TO and the documents contained therein pursuant to which the Offer will be made, in each case together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, the “"Offer Documents”"). ~~Subject~~ Parent and Merger Sub (i) agree that, on the date on which the Schedule TO is filed with the SEC and on each date on which any amendment or supplement to ~~Section 5.2~~any Offer Document is filed with the SEC, ~~the Company hereby consents to the inclusion in~~ the Offer Documents ~~of the recommendation and the approval of the Company Board of Directors referred~~ shall comply as to ~~in Section 3.20(a). The Offer Documents will comply~~ form in all material respects with ~~all applicable provisions~~ the Exchange Act and the rules and regulations promulgated thereunder, and (ii) represent and warrant that, on the date first published, sent or given to Shareholders, the Offer Documents 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 ~~Exchange Act~~circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied in writing by or on behalf of the Company or any of its officers or directors specifically for inclusion or incorporation by reference in any Offer Document. Each of Parent and Merger Sub (or the Company, in the case of any information supplied by or on behalf of the Company or any of its officers or directors specifically for inclusion or incorporation by reference in any Offer Document) agree promptly to correct any information contained 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 Parent and Merger Sub shall take all ~~commercially reasonable~~ steps necessary to amend or supplement the Offer Documents to reflect such correction and to cause the Offer Documents as so amended or supplemented to be filed with the SEC ~~and, subject~~ and disseminated to the ~~Company’s compliance with Section 1.2(c), disseminated to holders of Shares~~Shareholders, in each case as and to the extent required by applicable ~~Law~~Federal and state securities laws. Parent and ~~Sub, on~~ Merger Sub shall provide the ~~one hand,~~ Company and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given its counsel a reasonable opportunity to review and comment on upon the ~~Schedule TO and~~ Offer Documents (including, without limitation, any amendment ~~thereto before it is filed~~ or supplement thereto) prior to their filing with the ~~SEC, and~~ SEC or dissemination to the Shareholders. Parent and Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel in writing with any written comments (and orally, with any oral comments~~, whether written or oral,~~ ) that Parent, Merger Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and ~~any written or oral responses thereto, and~~ shall provide the Company ~~shall have~~ and its counsel with a reasonable opportunity to participate in the ~~right to consult with Parent,~~ response of Parent and Merger Sub ~~and their counsel prior to responding~~ to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) ~~Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary~~ The parties hereto agree to promptly ~~pay in full in cash~~ file with the ~~aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant~~ Commonwealth of Massachusetts any registration statement relating to the Offer ~~and that Sub is obligated~~ required to ~~accept for payment~~ be filed pursuant to Chapter 110C of the ~~Offer and permitted to accept for payment under applicable Law.~~Massachusetts

Appears in 2 contracts

Samples: Merger Agreement (Minnesota Mining & Manufacturing Co), Merger Agreement (Minnesota Mining & Manufacturing Co)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article VI hereof and so long as none of the events ~~described~~ set forth in ~~any of paragraphs~~ Annex A hereto (athe "Tender Offer Conditions") ~~or (b) of Annex III hereto~~ shall have occurred and ~~be continuing (unless waived by~~ are continuing, as promptly as practicable, but in no event later than the fifth business day after the date of this Agreement, Parent ~~or Sub),~~ and Sub shall, and Parent shall cause Sub to, commence ~~(within the meaning 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 ~~within ten (10) business days following~~ at the ~~date hereof~~Offer Price. The obligations of Sub to accept for payment and to pay for any ~~Shares validly~~ shares of 6 Common Stock tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver~~ Tender Offer Conditions, any of which may be waived by Parent or Sub ~~of conditions set forth~~ in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offertheir sole discretion; provided, however, that Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer,~~ waive ~~or change~~ the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is twenty-one (21A) 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~~ Company. The Tender Offer Conditions are for the sole benefit of Parent and Sub and may be ~~authorized~~ asserted by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Parent and Sub ~~shall, upon the written request~~ regardless of the ~~Company at least one business day before~~ circumstances giving rise to any such Tender Offer Conditions or, except as expressly set forth herein, may be waived by Parent and Sub in whole or in part. Parent and Sub expressly reserve the ~~then-~~right to modify the terms of the Offer, including without limitation to extend the Offer beyond any scheduled expiration date~~, and may~~; provided; however, without the prior written consent of the Company, Sub shall not (i) ~~extend~~ reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer ~~beyond~~ Price, (iii) modify or add to the ~~initial expiration date if~~Tender Offer Conditions, at (iv) change the form of consideration payable in the Offer or (v) make any ~~scheduled (or extended) expiration~~ other change in the terms of the Offer which is materially adverse to the holders of the Common Stock. Upon the terms and subject to the conditions of the Offer, ~~any~~ Sub shall purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the ~~conditions set forth in Annex III hereto~~ Offer and not withdrawn. (~~other than~~ b) As soon as reasonably practicable on the ~~Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend~~ date the Offer ~~if at~~ is commenced, Parent and Sub shall file, and Parent shall cause Sub to file, with the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (~~“SEC”), or~~ the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b"Commission") ~~On the date of commencement of the Offer, Parent and Sub 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~~ 14D-1 (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Schedule 14D-1") with respect to the Offer. The Schedule 14D-1 shall contain (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a form of the related letter of transmittal (the "Letter of Transmittal"), as well as all other information and exhibits required by law (which Schedule 14D-1, Offer to Purchase, Letter of Transmittal and such other information and exhibits, together with any supplements or amendments thereto, are referred to herein collectively as 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~~ Schedule 14D-1 will comply in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws and, on the ~~Exchange Act~~date filed with the Commission and the date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be 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 Parent or Sub with respect to any information supplied by the Company in writing for inclusion in the Schedule 14D-1. Each of Parent and Sub ~~agree~~ agrees promptly to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents ~~if and to the extent~~ that it shall be, or have ~~become~~ become, false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Sub further agree to take all steps necessary to cause the ~~Offer Documents~~ Schedule 14D-1 as so corrected to be filed with the ~~SEC~~ Commission and the other Offer Documents as so corrected to be disseminated to holders of ~~Shares~~Common Stock, in each case as and to the extent required by applicable ~~Law~~federal securities laws. ~~The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and~~ Each of Parent and Sub ~~shall give due consideration~~ agrees to ~~all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition,~~ counsel with copies of any written comments 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~~ the ~~expiration or termination of the Offer, from the SEC~~ Commission or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.Documents promptly

Appears in 2 contracts

Samples: Merger Agreement (Lift Acquisition Co Inc), Merger Agreement (Raymond Corp)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated~~ Agreement, as promptly as practicable but in ~~accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~no event later than May 25, 1999, Sub shall, and Parent shall cause Sub to, ~~commence (~~commence, within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange Act ~~of 1934,~~ (as ~~amended (together with the rules and regulations promulgated thereunder~~hereinafter defined), the ~~“Exchange Act”))~~ Offer. The initial expiration date of the Offer ~~within ten (10) business days following the date hereof~~shall be June 23, 1999. The ~~obligations~~ obligation of Sub to, and of Parent to cause Sub to, commence the Offer and accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject to the conditions set forth in Exhibit A, any of which may be waived by Parent or Sub in their sole discretion; provided that, without the prior written consent of the Company, Sub shall not (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 to be paid pursuant to the Offer, (iv) extend the Offer if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer, or (vi) amend, add or waive any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner that would adversely affect the Company or its stockholders in any material respect. Notwithstanding the foregoing, Sub may, without the consent of the Company, extend the Offer (i) if at the then scheduled expiration date of the Offer any of the conditions to Sub's obligation to accept for payment and to pay for shares of Common Stock shall not have been satisfied or waived, until the fifth business day after the date Sub reasonably believes to be the earliest date on which such conditions will be satisfied; (ii) for any ~~Shares validly tendered~~ period required by any rule, regulation, interpretation or position of the SEC (as hereinafter defined) or its staff applicable to the Offer; or (iii) for an aggregate period of not more than ten business days (for all such extensions) notwithstanding the satisfaction of all conditions to the Offer. Parent and Sub agree that if at any scheduled expiration date of the Offer, the Minimum Condition or the Regulatory Condition (as defined in Exhibit A) shall not ~~withdrawn~~ have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Exhibit A shall then be satisfied, at the request of the Company, Sub shall extend the Offer from time to time, subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Parent and Sub further agree that in the event Sub wishes to terminate the Offer solely by reason of the condition described in clause (i) of Exhibit A, Sub shall first extend the Offer for a minimum period of ten days, it being understood that, if at the end of such ten day period, a banking moratorium or suspension of payments in respect of banks in the United States shall be in effect, Sub shall then be entitled to terminate the Offer under the provisions of clause (i) of Exhibit A, provided, that Sub shall not be required to extend the Offer more than once pursuant to this sentence. Notwithstanding anything to the contrary contained herein, the parties further agree that, in the event that upon any scheduled expiration date of the Offer (or any extension thereof), (x) all conditions to the Offer set forth in Exhibit A to this Agreement have been satisfied and (y) for a period of five consecutive trading days prior to the expiration of the Offer (or any extension thereof), the average of the daily closing values of the Standard & Poor's Index of 500 Industrial Companies (the "S&P Index") for such five trading days shall reflect a decline in excess of 25% as ~~it may be extended in accordance with requirements~~ compared to the closing value of ~~this Section 1.1(a))~~ the S&P Index on the close of business on the trading day next preceding the date of the Merger Agreement, then Sub shall be ~~subject only~~ entitled to extend the ~~conditions set forth in Annex III hereto~~Offer for a period not to exceed eight trading days. Subject to the ~~prior satisfaction or waiver by Parent or Sub~~ terms and conditions of ~~conditions~~ the Offer set forth in ~~Annex III hereto~~Exhibit A, Sub shall, and Parent shall cause Sub to, ~~consummate the Offer in accordance with its terms and accept for payment and~~ pay for all Shares validly 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 (~~as soon as practicable after the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub shall 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 TO 14D-1 with respect to the ~~Offer~~ Offer, which shall contain (~~together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include,~~ included as ~~exhibits, the Offer~~ an Exhibit) or incorporate by reference an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule 14D-1 and the documents therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents”"). ~~Subject~~ The Company and its counsel shall be given an opportunity to ~~Section 5.2, the Company hereby consents to the inclusion in~~ review and comment upon the Offer Documents of prior to the ~~recommendation and~~ filing thereof with the ~~approval of the Company Board of Directors referred to in Section 3.20(a)~~SEC. The Offer Documents ~~will~~ shall comply as to form in all material respects with ~~all applicable provisions~~ the requirements of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act~~. Parent~~ "), and ~~Sub agree to take all commercially reasonable steps necessary to cause~~ on the ~~Offer Documents to be~~ date filed with the SEC ~~and~~and on the date first published, ~~subject~~ sent or given to the Company~~’s compliance with Section 1.2(c)~~'s stockholders, ~~disseminated~~ the Offer Documents shall not contain any untrue statement of a material fact or omit to ~~holders of Shares~~state any material fact required to be stated therein or necessary in order to make the statements therein, in ~~each case as and~~ light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Sub with respect to information supplied by the ~~extent required by applicable Law~~Company in writing, expressly for inclusion in the Offer Documents. ~~Parent and Sub~~Each of Parent, ~~on the one hand,~~ Sub and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and each of Parent and Sub further ~~agree~~ 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~~shares of Common Stock, in each case as and to the extent required by applicable ~~Law~~federal securities laws. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company and its counsel in writing with copies of any ~~comments, whether~~ written ~~or oral, that~~ comments Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer Documents, 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 Company and its legal counsel with respect thereto. (c) Prior to or concurrently with the expiration of the Offer, Parent shall provide or cause to be provided to Sub ~~promptly following the expiration~~ all 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Sub becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (First Commonwealth Inc), Merger Agreement (Floss Acquisitions Corp)

The Offer. (a) (i) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and that none of the events ~~described~~ set forth in ~~any of paragraphs~~ Paragraph (~~a) or (b~~2) of Annex ~~III~~ I hereto shall exist or have occurred and be ~~continuing (unless waived by Parent or Sub)~~continuing, as promptly as practicable after the date hereof, but in no event later than the fifth business day after the date hereof, 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 (~~together with the rules and regulations promulgated thereunder,~~ the “Exchange Act”)) the Offer ~~within ten (10) business days following~~ to purchase all of the ~~date hereof~~outstanding shares of Company Common Stock at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for ~~any Shares~~ shares of Company Common Stock validly tendered pursuant to the Offer and not subsequently withdrawn ~~prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase I hereto (the “Offer Conditions”). The date on which Merger Sub “commences” the Offer (within the meaning of Rule 14d-2 under the Exchange Act) is hereafter referred to ~~Purchase~~as the “Offer Commencement Date”~~) that contains~~ . To the ~~terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent~~ extent permitted by applicable Law, Merger Sub expressly reserves the right to waive any of ~~such conditions, to increase~~ the Offer ~~Price~~ Conditions and to make any ~~other changes~~ change in the terms of the Offer~~; provided~~, ~~however~~except that without the prior consent of the Company, ~~that~~ Merger Sub shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ (A) decrease the Offer Price or change the form of the consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, (B) decrease the number or percentage of shares of Company Common Stock sought pursuant to the Offer, (C) amend or waive ~~or change~~ the Minimum Tender Condition (as defined in Annex ~~III hereto~~I), ~~modify or amend~~ (D) impose any of conditions to the Offer in addition to the conditions set forth on Annex I, (E) amend or modify the Offer in ~~Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case in any~~ a manner adverse to the holders of ~~the~~ shares of Company Common ~~Stock, impose any conditions to the Offer that are not set forth on Annex III hereto~~Stock taken as a whole, or (F) extend the ~~Offer beyond a date that is twenty-one (21) business days after commencement of the Offer or the last extension~~ Expiration Date (as ~~permitted~~ defined in ~~accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”~~Annex I) except as ~~set forth below, in each case without the prior written consent of the Company (such consent to be authorized~~ required or permitted by ~~the Company Board of Directors or a duly authorized committee thereof~~this Section 1.1(a). ~~Notwithstanding~~ The Expiration Date shall be the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend 20th Business Day next following the Offer ~~beyond the initial expiration date if, at any scheduled~~ Commencement Date (~~or extended) expiration of the Offer, any of the conditions~~ calculated as set forth in ~~Annex III hereto~~ Rule 14d-1(a) (~~other than the Minimum Condition~~3) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act). (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Nutra Acquisition CO Inc.), Merger Agreement (Plethico Pharmaceuticals Ltd.)

The Offer. (a) ~~Provided that this Agreement shall not have been terminated~~ As promptly as practicable (but in ~~accordance with Section 8.1 and none~~ no event later than five business days after the public announcement of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~execution hereof), ~~Sub shall, and Parent~~ Purchaser shall ~~cause Sub to,~~ commence (within the meaning 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 ~~within ten~~ to purchase for cash all of the issued and outstanding shares of Company Common Stock at a price of $17.50 per Share, net to the seller in cash (10such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer Price"), subject to there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which, together with the Shares beneficially owned by Parent or Purchaser, represents at least 80% of the Shares outstanding on a fully diluted basis (the "Minimum Condition") ~~business days following~~ and to the ~~date hereof~~other conditions set forth in Annex A hereto. Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer (including without limitation the Minimum Condition), accept for payment and pay for Shares tendered as soon as practicable after it is legally permitted to do so under applicable law, but in no event prior to January 3, 1996. The obligations of ~~Sub~~ Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered ~~and not withdrawn~~ on or prior to the expiration of the Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Annex ~~III~~ A hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") ~~that contains~~ containing the terms set forth in this ~~Agreement~~ Agreement, the Minimum Condition and the other conditions set forth in Annex ~~III~~ A hereto. ~~Parent expressly reserves~~ Without the ~~right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms~~ written consent of the ~~Offer; provided~~Company, ~~however, that Sub~~ Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ decrease the Offer ~~Price or change the form of consideration in which any component of the Offer Price is payable~~Price, decrease the number of Shares ~~sought~~ sought, change the form of consideration to be paid in the Offer, ~~waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify~~ or amend any other ~~term or~~ condition of the ~~Offer, in each case~~ 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 ~~Common Stock~~shall have received a Higher POL Offer (as defined in Section 6.13 below) that the Company intends to accept, ~~impose any~~ 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 extended) all conditions to the Offer ~~that are~~ shall not ~~set forth on Annex III hereto~~have been satisfied or waived, ~~or extend~~ the Offer ~~beyond a date that is twenty-one (21) business days after commencement~~ may be extended from time to time until February 1, 1996 without the consent of the Company. In addition, the Offer or Price may be increased and the ~~last extension (as permitted~~ Offer may be extended to the extent required by law in ~~accordance~~ connection with ~~this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below~~such increase, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company~~, (i) extend~~ . Purchaser shall terminate the Offer ~~beyond~~ upon termination of this Agreement pursuant to its terms. (b) As soon as practicable on the ~~initial expiration~~ date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition~~ is ~~not satisfied~~commenced, ~~for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of~~ Parent and Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b") ~~On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including the exhibits thereto, the “"Schedule ~~TO”~~14D-1"). The Schedule ~~TO shall~~ 14D-1 will include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents~~”). Subject to Section 5.2, the Company hereby consents~~ ") with respect 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)~~Offer. The Offer Documents will comply in all material respects with ~~all applicable~~ the provisions of applicable Federal securities laws and, on the ~~Exchange Act~~date filed with the SEC and on the date first published, sent or given to the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and ~~Sub agree~~ Purchaser further agrees to take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject~~ and to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~Federal securities laws. Each of Parent and ~~Sub~~Purchaser, on the one hand, and the Company, on the other hand, ~~agree~~ agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect ~~or as otherwise required by Law. Parent~~ and ~~Sub~~ Purchaser further ~~agree~~ 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 ~~Law~~Federal securities laws. The Company and its counsel shall be given ~~a reasonable~~ the opportunity to review ~~and comment on~~ the Schedule ~~TO and any amendment thereto~~ 14D-1 before it is filed with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and ~~Sub~~ Purchaser agree to provide the Company and its counsel in writing with any ~~comments, whether written or oral, that~~ comments Parent, ~~Sub~~ Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Psicor Inc), Merger Agreement (Baxter International Inc)

The Offer. (a) Provided ~~that~~ this Agreement shall not have --------- been terminated in accordance with Section ~~8.1 and none~~ 7.1, as promptly as practicable (but in no event later than five business days after the public announcement of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~execution hereof), ~~Sub~~ the Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder, the “~~"Exchange Act”")) an offer (the "Offer") to purchase for cash any and all shares of the issued and outstanding Company Common Stock at a price of $17.85 per Share, net to the seller in cash (such price, or such higher price per Share as may be paid in the Offer, being referred to herein as the "Offer ~~within ten (10) business days following~~ Price"), subject to the ~~date hereof~~conditions set forth in Annex A hereto. The Company shall not tender Shares held by it or by any of its subsidiaries pursuant to the Offer. The Purchaser shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The obligations of ~~Sub~~ the Purchaser to consummate the Offer and to accept for payment and to pay for any Shares validly tendered ~~and not withdrawn~~ on or prior to the expiration of the Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ and not withdrawn shall be subject only to the conditions set forth in Annex ~~III~~ A hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. . (b) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") ~~that contains~~ containing the terms set forth in this Agreement and the conditions set forth in Annex ~~III~~ A hereto. ~~Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub~~ The Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ decrease the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable,~~ decrease the number of Shares ~~sought in the Offer~~sought, ~~waive or change the Minimum Condition (as defined in Annex III hereto), modify or~~ amend ~~any of~~ the conditions to the Offer set forth in Annex ~~III hereto~~ A 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~~ in addition to those set forth on in Annex ~~III hereto~~A, or extend the Offer beyond a date that is 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 be authorized by the ~~Company~~ Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, ~~but subject~~ the Purchaser shall be entitled to and shall, and Parent agrees to cause the Purchaser to, extend the Offer at any time up to 40 days in the aggregate, 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 ~~parties’ respective rights~~ Offer is not satisfied or waived; provided however, that the Purchaser shall not be required to ~~terminate~~ extend the Offer as provided in this sentence unless (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 ~~in accordance with Section 8.1, Sub shall, upon~~ after the ~~written request of~~ Purchaser shall have given the Company ~~at least one~~ five business ~~day before~~ days prior written notice of any such non-compliance. In addition, without limiting the ~~then-scheduled expiration date~~foregoing, ~~and~~ the Purchaser may, without the consent of the Company, (iA) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to ~~two~~ an additional 40 days, in one or more periods of not more than ~~ten~~ 10 business days, if any condition to the Offer is not satisfied or waived and (10B) ~~business days per extension~~if, on the expiration date of the Offer, the Shares validly tendered and not withdrawn pursuant to the Offer are sufficient to satisfy the Minimum Condition (iias defined in Annex A hereto) ~~from time to time~~but equal less than 90% of the outstanding Shares, extend the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied,~~ on one occasion for up to ~~two periods of ten (10)~~ 10 business days ~~per extension or (iii) extend~~ notwithstanding that all the conditions to the Offer ~~for~~ have been satisfied so long as Purchaser irrevocably waives the satisfaction of any ~~period~~ of the conditions to the 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 during any such extension of the Offer. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by ~~any rule~~law in connection with such increase in each case without the consent of the Company. (c) As soon as practicable on the date the Offer is commenced, ~~regulation or interpretation of~~ Parent and the Purchaser shall file with the United States Securities and Exchange Commission (“the "SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b") ~~On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including the exhibits thereto, the “"Schedule ~~TO”~~14D-1"). The Schedule TO 14D-1 shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The Offer Documents ~~will~~ shall comply in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws and, on the ~~Exchange Act~~date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent and ~~Sub agree to~~ the Purchaser shall further take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject~~ and to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. Each of Parent and ~~Sub~~the Purchaser, on the one hand, and the Company, on the other hand, ~~agree to~~ shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or and misleading in any material respect ~~or as otherwise required by Law. Parent~~ and ~~Sub~~ the Purchaser further ~~agree 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 ~~Law~~federal securities laws. The Company and its counsel shall be given ~~a reasonable~~ an opportunity to review and comment on upon the Schedule TO 14D-1 (and shall provide any ~~amendment thereto before it is filed~~ comments thereon as soon as practicable) prior to the filing thereof with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and ~~Sub agree to~~ the Purchaser shall provide the Company and its counsel in writing with any ~~comments, whether written or oral,~~ comments that Parent, ~~Sub~~ Purchaser or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of such ~~comments,~~ comments and with copies of any written ~~or oral~~ responses ~~thereto,~~ and ~~the Company shall have the right to consult with~~ telephonic notification of any verbal responses by Parent, ~~Sub and~~ Purchaser or their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretocounsel. (cd) Parent shall provide or cause to be provided to ~~Sub promptly following the expiration~~ Purchaser all 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~~ purchase any shares of Company Common Stock that ~~have been validly tendered and not withdrawn~~ Purchaser becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (Consolidated Cigar Holdings Inc), Merger Agreement (Societe Nationale D Exploitation Indus Des Tabacs Et Allumet)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated in accordance with Section 8.1~~ Agreement, as promptly as practicable and ~~none of the events described~~ in any ~~of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~event no later than October 9, ~~Sub~~ 2014, Merger Subsidiary shall, and Parent shall cause ~~Sub~~ Merger Subsidiary to, ~~commence (~~commence, within the meaning of Rule ~~14d-2~~ l4d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act, the ~~“Exchange Act”)) the Offer within ten (10) business days following the date hereof~~Offer. The ~~obligations~~ obligation of ~~Sub~~ Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction ~~or waiver by Parent or Sub~~ of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex ~~III hereto.~~ A and to the terms and conditions of this Agreement; provided that Parent ~~expressly reserves the right to~~ and Merger Subsidiary may waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ (other than the Minimum Tender Condition, which may not be waived without the prior written consent of the Company) and to may make ~~any other~~ changes in the terms and conditions of the ~~Offer; provided~~Offer except that, ~~however~~without the prior written consent of the Company, ~~that Sub shall not~~(i) no change may be made to the form of consideration to be paid, ~~and Parent shall cause Sub not to,~~ (ii) no decrease in the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable, decrease~~ the number of Shares sought in the ~~Offer~~Offer may be made, ~~waive~~ (iii) no change which imposes additional conditions to the Offer or ~~change the Minimum Condition (as defined in Annex III hereto), modify or amend~~ modifies any of the conditions set forth in Annex ~~III hereto or otherwise modify or amend any other term or condition of the Offer, in each case~~ A in any manner adverse to the holders of the ~~Company Common Stock~~Shares may be made, ~~impose any conditions to the Offer that are not set forth on Annex III hereto, or~~ (iv) neither Parent nor Merger Subsidiary may extend ~~the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section ~~8.1, Sub shall, upon~~ 2.1(c) and (v) otherwise amend the ~~written request~~ Offer in any manner adverse to the Company or any holder of Shares. The parties hereto agree to cooperate in good faith to modify the terms of the ~~Company at least one business day before the then-scheduled expiration date,~~ Offer as and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if ~~at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period~~ required by ~~any rule, regulation or interpretation of~~ the ~~United States Securities and Exchange Commission (“~~SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and ~~Sub~~ Merger Subsidiary shall file with the SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange ~~Act (“Regulation M-A”)~~Act, a Tender Offer Statement on Schedule TO ~~with respect~~ (as amended and supplemented from time to ~~the Offer (together with all amendments, supplements and exhibits thereto~~time, the “Schedule TO”)~~. The Schedule TO~~ , which shall ~~include~~comply in all material respects with the provisions of applicable federal securities Laws, ~~as exhibits,~~ and shall contain the offer to purchase relating to the Offer ~~to Purchase~~ and ~~a form~~ forms of the related letter of transmittal and ~~summary advertisement~~ other appropriate documents (~~collectively~~which documents, ~~together with any amendments and supplements thereto~~as amended or supplemented from time to time, are referred to herein collectively as the “Offer Documents”). ~~Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ Parent and the ~~approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub~~ Merger Subsidiary further agree to ~~take all commercially reasonable steps necessary to cause~~ disseminate the Offer Documents to ~~be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to~~ holders of ~~Shares, in each case~~ Shares as and to the extent required by applicable ~~Law~~federal securities Laws. In conducting the Offer, Parent and the Merger Subsidiary shall comply with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Merger Subsidiary for inclusion therein The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and ~~Sub~~Merger Subsidiary agree to provide the Company and its counsel (i) any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), on including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the ~~one hand~~SEC. Each of Parent, Merger Subsidiary and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each ~~case~~ case, as and to the extent required by applicable Law. . (c) The ~~Company~~ initial scheduled expiration date of the Offer shall be ~~given a reasonable opportunity to review and comment~~ midnight, New York City time, on the ~~Schedule TO~~ twentieth Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (the initial “Expiration Date,” and ~~any amendment thereto before it~~ if and only if the expiration time and date is ~~filed with~~ extended as authorized in this Agreement, as so extended, the ~~SEC~~“Expiration Date”); provided, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company with any comments, whether written or oralhowever, that ~~Parent~~Merger Subsidiary: (i) may, ~~Sub or their counsel may receive~~ from time to time ~~prior~~ extend the Offer for one or more periods of up to 10 Business Days each (or such longer period as may be agreed to by the ~~expiration or termination~~ Company), if at the scheduled Expiration Date any of the conditions of the Offer, ~~from~~ including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement or (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or ~~its~~ the staff ~~with respect~~ thereof applicable to the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer ~~Documents, promptly upon receipt of such comments,~~ as soon as possible after the Expiration Date so long as the conditions and ~~any written~~ requirements set forth on Annex A have been complied with or ~~oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel~~ validly waived. The Offer may not be terminated prior to ~~responding to any such comments, either~~ its scheduled Expiration Date (as it may be extended in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel accordance with ~~respect thereto~~this Agreement) unless this Agreement is terminated in accordance with Section 8.1. (cd) Parent shall provide or cause to be provided to ~~Sub promptly following~~ Merger Subsidiary on a timely basis 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Subsidiary becomes obligated to purchase 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~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (Eos Petro, Inc.), Merger Agreement (Dune Energy Inc)

The Offer. ~~(a) Provided that~~ 1.1.1 As promptly as practical after the date of this Agreement ~~shall not have been terminated~~ on a date mutually agreeable to Parent, HoldCo and the Company (but in ~~accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~no event later than August 16, 2016), Merger Sub ~~shall,~~ shall (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 the terms and conditions of this Agreement, and subject to the satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to), promptly (within the meaning of Rule 14e-1(c) of the Securities Exchange Act of 1934, as ~~amended (together with~~ amended, and the rules and regulations promulgated ~~thereunder,~~ thereunder (the “Exchange Act”)) ~~the Offer within ten (10) business days~~ following the ~~date hereof. The obligations of Sub to~~ Expiration Time, irrevocably accept for payment ~~and to~~ (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for ~~any Shares~~ all shares of Company Common Stock validly tendered and not properly withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. 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 Offer. 1.1.3 The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains~~ in accordance with the terms set forth in this Agreement and subject only to the ~~conditions set forth in Annex III hereto~~Offer Conditions. ~~Parent~~ Merger Sub expressly reserves the right to ~~waive any of such conditions, to~~ (i) increase the Offer ~~Price~~ Price, (ii) waive any Offer Condition other than the Minimum Condition and to (iii) make any other changes in to the terms and conditions of the Offer not inconsistent with the terms of ~~the Offer~~this Agreement; ~~provided~~provided that, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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, 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 be paid in the Offer; (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 supplement any of 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 the Exchange Act) of the Offer (such ~~consent~~ initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to ~~be authorized by~~ and in accordance with Section 1.1.5, the ~~Company Board of Directors~~ date and time to which the Offer has been so extended (the Initial Expiration Time, or ~~a duly authorized committee thereof~~such later expiration date and time to which the Offer has been so extended, the “Expiration Time”)~~. Notwithstanding the foregoing, but subject~~ . 1.1.5 Subject to the parties’ respective rights to terminate ~~this~~ the Agreement ~~in accordance with~~ pursuant to Section ~~8.1~~7, ~~Sub~~ the Offer may or shall, ~~upon the written request of the Company~~ as applicable, be extended from time to time as follows: (i) if, at ~~least one business day before~~ the then-scheduled ~~expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer~~Expiration Time, any of the ~~conditions set forth in Annex III hereto (other than the Minimum Condition) shall~~ Offer Conditions has not be been satisfied or waived ~~for up~~ by Parent, HoldCo and Merger Sub (to ~~two periods of not more than ten~~ the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and HoldCo shall (10and Parent shall cause HoldCo to) ~~business days per extension, (ii) from time to time~~cause Merger Sub to, extend the Offer if on one or more occasions in consecutive increments of five Business Days each (each such 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 ~~scheduled~~ sole discretion of Parent and HoldCo or ~~extended Expiration Date~~ as may be agreed to by Parent, HoldCo and the ~~Minimum Condition is~~ Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that Merger Sub shall not ~~satisfied, for up~~ be required or permitted to ~~two periods of ten~~ extend the Offer to a date later than the Outside Date; and (10ii) ~~business days per extension or (iii)~~ Merger Sub shall extend the Offer for ~~any~~ the minimum period required by ~~any rule~~applicable Law, ~~regulation~~ interpretation or ~~interpretation~~ position of the ~~United States~~ 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 ~~staff thereof~~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, ~~applicable to~~ in the ~~Offer. In addition to~~ event that, as a result of the ~~foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period”~~ extension of the Offer in accordance with ~~Rule 14d-11 under~~ the ~~Exchange Act~~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 (bincluding 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~~Offer (within the meaning of Rule 14d-2 under the Exchange Act), ~~Parent and~~ Parent, HoldCo or Merger Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer in accordance with Rule 14d-3 under the Exchange Act (together with all ~~amendments~~exhibits, amendments and supplements ~~and exhibits~~ thereto, the “Schedule TO”~~). The Schedule TO shall include, as exhibits,~~ ) that will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal ~~and summary advertisement~~ (~~collectively~~the Schedule TO, together with ~~any amendments and supplements thereto~~all documents included therein pursuant to which the Offer will be made, the “Offer Documents”). ~~Subject to Section 5.2~~Parent, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ HoldCo and ~~the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and~~ Merger Sub ~~agree to take all commercially reasonable steps necessary to cause~~ shall cause, at Merger Sub’s expense, the Offer Documents to be ~~filed with the SEC and, subject~~ disseminated to the Company’s ~~compliance with Section 1.2(c), disseminated to holders of Shares, in each case~~ stockholders as and to the extent required by applicable Law. ~~Parent and Sub~~Each of Parent, ~~on the one hand~~HoldCo, Merger Sub and the ~~Company, on the other hand, agree~~ Company shall use its respective reasonable best efforts to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ HoldCo further 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 Shares~~the Company’s stockholders, in each case as and to the extent required by applicable Law. The 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 Company’s Subsidiaries that is required by the Exchange Act to be ~~given a~~ 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 ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to the filing thereof with the SEC. Parent, HoldCo and ~~Parent and~~ Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel with a copy of any written comments, ~~whether~~ and a written ~~or oral~~summary of any oral comments, that Parent, HoldCo, Merger Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after 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. Each of Parent, ~~either in written or oral form. The~~ HoldCo and Merger Sub shall give the Company and its ~~legal~~ counsel ~~shall be given~~ a reasonable opportunity to review and comment on any proposed written responses to ~~such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and~~ any comments of the ~~Company and~~ SEC or its ~~legal counsel~~ staff with respect ~~thereto~~to the Offer Documents. ~~(c) Parent shall provide or cause~~ 1.1.9 Parent, HoldCo, Merger Sub and the paying agent with respect to ~~be provided to Sub promptly following the expiration of~~ the Offer ~~or any subsequent extension thereof, as applicable, all funds necessary~~ shall be entitled to ~~promptly pay in full in cash~~ deduct and withhold from the ~~aggregate~~ Offer Price ~~for those Shares that have been validly tendered and not withdrawn~~ payable pursuant to the Offer such amounts as are required to be deducted and ~~that Sub is obligated to accept for payment pursuant~~ withheld with respect to the ~~Offer and permitted to accept for~~ making of such payment under ~~applicable~~ the Internal 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

Samples: Merger Agreement (Steinhoff International Holdings N.V.), Merger Agreement (Mattress Firm Holding Corp.)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated~~ Agreement, as promptly as practicable but in ~~accordance with Section 8.1 and none~~ no event later than five business days after the announcement of the ~~events described in any~~ execution of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, ~~Sub~~ the Purchaser shall, and Parent shall cause ~~Sub~~ the Purchaser to, commence (within the meaning 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 within ten (10) business days following~~ Offer. ------------ The obligation of the ~~date hereof. The obligations~~ Purchaser to, and of ~~Sub~~ Parent to cause the Purchaser to, accept for ~~payment~~ payment, and to pay ~~for~~ for, any ~~Shares validly~~ shares of Common Stock tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (~~the “Offer to Purchase”~~i) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex ~~III hereto~~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 attached hereto and to the other conditions of this Agreement. On the terms and subject to the conditions of the Offer and this Agreement, the Purchaser shall, and Parent shall cause the Purchaser to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer 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 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 of Common Stock to be paid pursuant to the Offer, (iii) modify or ~~amend any of~~ add to the conditions set forth in Annex ~~III hereto~~ A or otherwise ~~modify or~~ amend the Offer in any ~~other term or condition of~~ manner materially adverse to the Company's stockholders, (iv) except as provided in the next two sentences, extend the Offer, or (v) change the form of consideration payable 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, ~~but subject to~~ the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and Purchaser may, without the consent of the Company, (i) extend the Offer for a period of not more than 10 business days beyond the initial expiration date ~~if, at any scheduled~~ of the Offer (~~or extended)~~ which initial expiration date shall be 20 business days following commencement of the Offer), if on the date of such extension less than 90% of the outstanding shares of Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (ii) extend the Offer from time to time if at the initial expiration date or any extension thereof the Minimum Condition or any of the other conditions to the Purchaser's obligation to purchase shares of Common Stock set forth in paragraphs (a), (b) and (e) of Annex ~~III hereto (other than the Minimum Condition)~~ A shall not be satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, ~~(ii) from~~ until such time ~~to time~~as such conditions are satisfied or waived, ~~extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or~~ (iii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ Securities and Exchange Commission (“the "SEC~~”),~~ ") or the staff ~~thereof,~~ thereof applicable --- to the ~~Offer~~Offer and (iv) extend the Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. In ~~addition~~ addition, the Purchaser shall at the request of the Company extend the Offer for five business days if at any scheduled expiration date of the Offer any of the conditions to the ~~foregoing and excluded from any such limitations~~Purchaser's obligation to purchase shares of Common Stock shall not be satisfied; provided, ~~Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under~~ however, that the ~~Exchange Act~~Purchaser shall not be required to extend the Offer beyond November 30, 1997. (b) On As soon as practicable on the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, Parent and ~~Sub~~ the Purchaser shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including the exhibits thereto, the “"Schedule ~~TO”~~14D-l"). The Schedule ~~TO shall~~ -------------- 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~~ -------- Purchase") and a form of letter of transmittal and summary advertisement -------- (collectively, together with any amendments and supplements thereto, the “"Offer ----- Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The Offer Documents will comply in all material respects with ~~all applicable~~ the --------- provisions of applicable federal securities laws and, on the ~~Exchange Act~~date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information furnished by the Company to Parent or the Purchaser, in writing, expressly for inclusion in the Offer Documents. The Company shall furnish to Parent and ~~Sub agree~~ 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 Parent and the Purchaser will take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject~~ and to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of the Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. Each of Parent and ~~Sub~~the Purchaser, on the one hand, and the Company, on the other hand, ~~agree to~~ will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect ~~or as otherwise required by Law. Parent~~ and ~~Sub further agree to~~ the Purchaser 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 ~~Law~~federal securities laws. The Company and its counsel shall be given ~~a reasonable~~ the opportunity to review ~~and comment on~~ the Schedule ~~TO and any amendment thereto~~ 14D-1 (including, without limitation, all documents filed therewith as exhibits) before it is filed with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and ~~Sub agree to~~ the Purchaser will provide the Company and its counsel in writing with any comments, whether written or oral, ~~that~~ Parent, ~~Sub~~ the Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: 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 ~~Section 8.1~~ Article VIII and none of the events ~~described~~ set forth in ~~any~~ Annex I hereto (the "Tender Offer Conditions") shall have occurred, as promptly as practicable, but in no event later than the fifth business day from the date of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, ~~Sub shall, and~~ Parent shall cause ~~Sub to,~~ the Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as ~~amended (together with~~ amended, including the rules and regulations promulgated ~~thereunder,~~ thereunder (the “"Exchange Act”")) an offer to purchase all outstanding Shares at the Offer ~~within ten~~ Price, shall, after affording the Company a reasonable opportunity to review and comment thereon, file all necessary documents with the Securities and Exchange Commission (10the "SEC") ~~business days following~~ in connection with the ~~date hereof~~Offer (the "Offer Documents"), and shall use reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The ~~obligations~~ obligation of ~~Sub~~ the Purchaser to accept for payment ~~and to~~ or pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall~~ pursuant thereto will be subject only to the satisfaction of the conditions set forth in Annex ~~III~~ I hereto~~. Subject to~~ . (b) Without the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the ~~Offer; provided~~Company, ~~however, that Sub~~ the Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ decrease the Offer Price or change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, decrease the number of Shares sought to be purchased in the Offer, ~~waive or change~~ impose additional conditions to the ~~Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify~~ Offer or amend any other term ~~or condition~~ of the ~~Offer, in each case~~ Offer in any manner adverse to the holders of Common Shares. The Offer shall remain open until the ~~Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a~~ date that is ~~twenty-one (21)~~ 20 business days (as such term is defined in Rule 14d-1(c)(6) under the Exchange Act) after the commencement of the Offer or (the ~~last extension (as permitted~~ "Expiration Date"), unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance ~~with this Section 1.1)~~with, ~~if any~~the two succeeding sentences or as may be required by applicable law, of in which event the term "Expiration Date" shall mean the latest time and date as the Offer, ~~whichever is later (the “Expiration Date”) except~~ as ~~set forth below~~so extended, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”)expire. Subject to ~~Section 5.2,~~ the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration terms of the Offer or and this Agreement and the satisfaction of all the Tender Offer Conditions as of any ~~subsequent extension thereof~~Expiration Date, ~~as applicable,~~ the Purchaser shall accept for payment and pay for 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 as promptly as practicable after such Expiration Date; provided that, (i) if on any scheduled Expiration Date of the Offer all of the Tender Offer Conditions (other than the Minimum Condition (as defined in Annex I) shall not have been satisfied or 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 to 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 any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer, and ~~that Sub is obligated~~ (ii) if all of the Tender Offer Conditions are satisfied but less than 90% of the outstanding Common Shares 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 Special Meeting (as defined herein) and (ii) such time as the Minimum Condition has been satisfied, after which time the Purchaser may not extend the Offer for any reason. Without the prior written consent of the Company, the Purchaser shall not waive the Minimum Condition or accept for payment ~~pursuant to~~ 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. It is agreed that the Tender Offer Conditions are solely for the benefit of the Purchaser and ~~permitted~~ may be asserted by the Purchaser regardless of the circumstances giving rise to ~~accept for payment under applicable Law~~any such condition (but not including any action or inaction by the Purchaser) or may (except as otherwise specifically provided in this Agreement), but need not, be waived by the Purchaser, in whole or in part at any time and from time to time, in its sole discretion.

Appears in 2 contracts

Samples: Merger Agreement (Pacific Scientific Co), Merger Agreement (Pacific Scientific Co)

The Offer. (a) Provided that ~~this Agreement shall not have been terminated in accordance with~~ the Company has fulfilled its obligation to provide information to Parent and Merger Sub on a timely basis as contemplated by Section ~~8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~2.1(e), 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 (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days following~~ as promptly as reasonably practicable after the date hereof. . (b) The ~~obligations~~ obligation of Merger Sub to accept for ~~payment~~ payment, purchase and to pay for any Company Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to (i) the Minimum Condition and (ii) the other conditions set forth in Annex ~~III~~ A hereto. ~~Subject to the prior satisfaction or waiver by Parent or~~ Merger Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to waive any of such ~~conditions~~condition (other than the Minimum Condition), to increase the ~~Offer Price~~ price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 no change may be made that (~~such consent~~ i) decreases the price per Company Share payable in the Offer, (ii) changes the form of consideration payable in the Offer, (iii) reduces the maximum number of Company Shares sought to be purchased in the Offer, (iv) adds to the conditions to the Offer set forth in Annex A hereto, (v) extends the Offer other than as set forth in this Section 2.1, or (vi) modifies or amends any condition to the Offer in any manner materially adverse to the holders of Company Shares. (c) The Offer initially shall be scheduled to expire twenty (20) Business Days following (and including, if it is a Business Day, the day of) the commencement thereof (the “Expiration Date,” unless extended in accordance with this subsection (c), in which case any expiration time and date established pursuant to an authorized by extension of the ~~Company Board~~ Offer in accordance with the terms of ~~Directors or a duly authorized committee thereof~~this Agreement, shall be the Expiration Date). Notwithstanding ~~the foregoing, but subject~~ anything herein to the ~~parties’ respective rights to terminate this Agreement in accordance with Section 8.1~~contrary, Merger Sub ~~shall, upon~~ (i) at the written request of the ~~Company at least one business day before the then-scheduled expiration date~~Company, shall, and ~~may~~Parent shall then cause Merger Sub to, ~~without the consent of the Company, (i)~~ from time to time extend ~~the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of~~ the Offer, ~~any~~ in increments of ~~the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not~~ no more than ten (10) ~~business days per extension~~Business Days each, if at the initial or any subsequent scheduled Expiration Date of the Offer any of the conditions to Merger Sub’s obligation to accept Company Shares for payment shall not be satisfied or waived, but each such condition is reasonably capable of being satisfied at or prior to the Outside Date, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement, (ii) ~~from time to time~~shall, ~~extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied~~and Parent shall cause Merger Sub to, ~~for up to two periods of ten (10) business days per extension or (iii)~~ 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, or (iii) may extend the Offer one time for up to five (5) Business Days if all of the conditions to Merger Sub’s obligation to accept for payment Company Shares are satisfied or waived, but the number of Company Shares validly tendered and not withdrawn pursuant to the Offer is less than ninety percent (90%) of the then outstanding Company Shares on a fully diluted basis at the otherwise scheduled Expiration Date. Notwithstanding the foregoing, no such extension provided for in this Section 2.1(c) shall extend the Offer beyond the Outside Date. In ~~addition~~ each of the above cases, Parent shall cause Merger Sub to extend the ~~foregoing and excluded~~ Offer from ~~any such limitations, Sub also may provide a “subsequent offering period”~~ time to time in accordance with ~~Rule 14d-11 under~~ this Section 2.1(c) for the ~~Exchange Act~~shortest time periods which it reasonably believes are necessary until consummation of the Offer if the conditions of the Offer shall not have been satisfied or waived, so long as this Agreement shall not have been terminated in accordance with Article VIII hereof. (bd) On The Per Share Amount shall, subject to applicable withholding of Taxes, be net to the seller of Company Shares in cash, upon the terms and subject to the conditions of the Offer. Merger Sub shall, and Parent shall cause Merger Sub to, pay the Per Share Amount for all Company Shares validly tendered and not withdrawn promptly following the acceptance of Company Shares for payment in accordance with the terms of the Offer (the date and time of acceptance for payment of such Company Shares, the “Acceptance Time”). If payment of the Per Share Amount is to be made to a Person other than the Person in whose name the surrendered certificate formerly evidencing Company 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 Amount to a Person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Merger Sub that such Taxes either have been paid or are not applicable. (e) As promptly as practicable on the date of commencement of the Offer, and conditioned on Company’s having fulfilled its obligation to provide information to Parent and Merger Sub on a timely basis as contemplated by this Section 2.1(e), Merger Sub shall, and Parent shall cause Merger Sub to, file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (together with all ~~amendments,~~ amendments and supplements ~~and exhibits~~ thereto, the “Schedule TO”)) with respect to the Offer. The Schedule TO shall ~~include, as exhibits~~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 (the Schedule TO, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all exhibits, supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the “Offer Documents”). ~~Subject to Section 5.2~~Merger Sub shall, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ and ~~the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ Parent ~~and~~ shall cause Merger Sub ~~agree to take all commercially~~ to, use its reasonable ~~steps necessary~~ best efforts to cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares,~~ Company Shares in ~~each case as and~~ all material respects to the extent required by applicable ~~Law~~federal securities laws. Parent and ~~Sub~~Merger Sub shall use their reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. Parent, ~~on the one hand,~~ Merger Sub and the ~~Company, on the other hand,~~ Company agree to correct promptly ~~correct~~ any information provided by it any of them for use in the Offer Documents ~~if and to the extent~~ that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Merger Sub further 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 Company Shares, in each case in all material respects as ~~and to the extent~~ required by applicable ~~Law~~federal securities laws. The Company shall ~~be given~~ as promptly as practicable furnish to Merger Sub or Parent all information concerning the Company that is required by applicable federal securities laws or reasonably requested by Merger Sub or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(e). Parent and Merger Sub shall give the Company and its counsel a reasonable opportunity to review and comment on the Schedule TO ~~and any amendment thereto~~ before it is filed with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and Merger Sub agree to provide the Company and its counsel (i) in writing with any comments, whether written or oral, ~~that~~ Parent, Merger Sub or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the 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 (ii) reasonable opportunity to review and comment on any ~~responses~~ written or oral response to such comments or ~~communications, and Parent and Sub shall give due consideration~~ any proposed amendment to ~~all reasonable views and comments of~~ the ~~Company and its legal counsel~~ Offer Documents prior to the filing thereof with ~~respect thereto~~the SEC. (cf) ~~Parent shall provide or cause to be provided to Sub promptly following~~ If, between the ~~expiration~~ date of this Agreement and the ~~Offer or~~ date on which any ~~subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price~~ particular Company Share is accepted for ~~those Shares that have been validly tendered~~ payment and ~~not withdrawn~~ paid for pursuant to the ~~Offer and that Sub is obligated~~ Offer, the outstanding shares of Company Common Stock are changed into a different number or class of shares by means of any stock split, division or subdivision of shares, stock dividend, reverse stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to ~~accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law~~such Company Share shall be appropriately adjusted.

Appears in 2 contracts

Samples: Merger Agreement (Blackbaud Inc), Merger Agreement (Convio, Inc.)

The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article VIII, (ii) nothing shall have occurred that would render any of the conditions set forth in the first paragraph of Annex A incapable of being satisfied and (iii) none of the events set forth in the second paragraph of Annex A hereto shall have occurred and be continuing, as promptly as practicable (but in no event later than seven (7) business days after the date of this Agreement) Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of the applicable rules and regulations of the Securities and Exchange 2 Commission (the "SEC") 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, net to the seller in cash. For purposes of this Agreement, the term "Transaction Consideration" shall mean $35.00 per Share in cash or any higher price as shall be paid in respect of the 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 have been terminated in accordance with ~~Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~Article VIII hereof, Sub shall, and Parent shall cause Sub to, commence (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to if the conditions set forth in Annex ~~III hereto. Subject~~ A are not satisfied or, to the ~~prior satisfaction~~ extent permitted hereby, waived by Purchaser as of the Expiration Date, then, except to the extent that such 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 ~~waiver by Parent~~ waived or ~~Sub of conditions~~ the date that is thirty (30) days (or if the condition set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase clause (~~the “Offer to Purchase”~~ii) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the ~~terms~~ first paragraph of Annex A has not been satisfied, 60 days) from the date of the ~~Offer~~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 thereupon be the Expiration Date for purposes of this Agreement); provided, however, that ~~Sub~~ Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease~~ be required to so extend the ~~Offer Price or change~~ Expiration Date if the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend failure to meet any of the conditions set forth in Annex ~~III hereto~~ A was caused by or ~~otherwise modify~~ resulted from the failure of the Company to perform in any material respect any covenant or ~~amend~~ agreement of the Company contained herein, or the material breach by the Company of any ~~other term~~ representation or ~~condition~~ warranty contained herein. Purchaser shall, subject to the terms and conditions 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment ~~pursuant to the Offer and~~ Shares tendered as soon as it is legally permitted to ~~accept for payment~~ do so under applicable ~~Law~~law.

Appears in 2 contracts

Samples: Merger Agreement (Bayer Corp), Merger Agreement (Bayer Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1 and none of~~ Article VIII hereof, as promptly as practicable after the ~~events described~~ date hereof (but in ~~any of paragraphs~~ no event later than the seventh (a7th) ~~or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~Business Day after the date hereof), Merger Sub ~~shall, and Parent~~ shall ~~cause Sub to,~~ commence (within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act~~ Act), and Parent shall cause Merger Sub to commence, the Offer to purchase all of ~~1934~~the issued and outstanding Shares at a price per Share in cash equal to $31.00 net to the seller, without interest and less any taxes required to be withheld as described in Section 3.5 (such amount to be paid for each Share, as it may be amended ~~(together~~ from time to time in accordance with the ~~rules and regulations promulgated thereunder~~terms hereof, the “~~Exchange Act~~Offer Price”). The Company agrees that no Shares owned by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. (b) ~~the Offer within ten (10) business days following the date hereof.~~ The obligations of ~~Sub~~ Merger Sub, and of Parent to cause Merger Sub, to accept for payment and to pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer on or prior to the Expiration Date (the “Tendered Shares”) shall be subject only to (i) the satisfaction of the Minimum Condition and (ii) the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I hereto (such conditions, together with the Minimum Condition, the “Offer Conditions”) and the terms and conditions hereof. The Offer Conditions are for the sole benefit of Parent and Merger Sub. Parent and Merger Sub expressly reserve the right to increase the Offer Price or to waive or to modify the terms or conditions of the Offer, except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall (i) reduce the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the number of Shares to be purchased by Merger Sub in the Offer, (iv) waive or amend the Minimum Condition, (v) add to the Offer Conditions or impose any other conditions to the Offer, (vi) extend the expiration of the Offer except as required or permitted in Section 1.1 of this Agreement, (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement, in each case in a manner adverse to the holders of Shares or (viii) abandon or terminate the Offer, except as expressly provided in this Agreement. (c) Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date for the Offer shall be midnight, New York City time, the twentieth (20th) Business Day from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act (such initial expiration date as it may be extended in accordance with ~~requirements~~ the terms of this ~~Section 1.1(a~~Agreement, the “Expiration Date”)~~) shall be subject only to the conditions set forth in Annex III hereto~~. ~~Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto,~~ Merger Sub shall, and Parent shall cause ~~Sub~~ it to, ~~consummate~~ extend the Offer ~~in accordance with its terms~~ for any period required by any rule, regulation, interpretation or position of the Securities and ~~accept for payment and pay for all Shares tendered and not withdrawn promptly following~~ Exchange Commission (the ~~acceptance of Shares for payment pursuant~~ “SEC”) or the staff thereof or the NASDAQ Stock Market (“NASDAQ”) that is applicable to the Offer. Merger Sub may without the consent of the Company (in each case unless this Agreement has been terminated pursuant to Article VIII), (i) extend the Offer for one or more consecutive increments of not more than ten (10) Business Days each, if at the then-scheduled Expiration Date any Offer Condition has not been satisfied or waived (the length of such period to be determined by Parent and Merger Sub) and/or (ii) make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. If at any then-scheduled Expiration Date any Offer Condition has not been satisfied or waived, Merger Sub shall, and Parent shall cause it to (in each case unless this Agreement has been terminated pursuant to Article VIII), extend the Offer at the request of the Company for one or more consecutive increments of not more than ten (10) Business Days each (the length of such period to be determined by Parent and Merger Sub) until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) the Outside Date. In addition, Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of not less than five (5) Business Days; provided that Merger Sub shall not be required to make available such a “subsequent offering period” in the event that, prior to the commencement of such “subsequent offering period,” Parent and Merger Sub, directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable); provided further that if Parent and Merger Sub, do not directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable) at the end of the initial “subsequent offering period,” Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, extend the “subsequent offering period” for not less than an additional five (5) Business Days. Nothing in this Section 1.1(c) shall (i) impose any obligation on Merger Sub to extend the Offer beyond the Outside Date, or (ii) be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Article VIII. (d) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains~~ containing the terms set forth in this Agreement and the conditions set forth in Annex ~~III~~ I hereto. Merger Sub shall, and Parent ~~expressly reserves~~ shall cause Merger Sub to, on the ~~right~~ terms set forth in this Agreement and subject to ~~waive any~~ the prior satisfaction or waiver of ~~such conditions, to increase~~ the conditions of the Offer ~~Price and to make any other changes in the terms of the Offer;~~ (provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 may not set forth on Annex III hereto, or extend the Offer beyond a date that is 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 be waived without the ~~prior~~ written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or accept for payment and pay for all Tendered Shares as soon as practicable after the ~~staff thereof, applicable to the Offer~~Expiration Date. ~~In addition to the foregoing and excluded from any such limitations,~~ If Merger Sub ~~also may provide~~ makes available a “subsequent offering period” in accordance with Section 1.1(c) hereof, Merger Sub shall, and Parent shall cause Merger Sub to accept for payment and pay for all Shares that are validly tendered during such “subsequent offering period” promptly (within the meaning of Rule 14d-11 under the Exchange Act) after any Shares are validly tendered during such “subsequent offering period.” (be) On the date of commencement of the Offer, Parent and Merger Sub shall file with the ~~SEC, pursuant to~~ SEC in accordance with Rule 14d-3 and 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~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits,~~ contain the Offer to Purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto and ~~supplements~~ including the exhibits thereto, the “Offer Documents”)~~. Subject to Section 5.2~~, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be ~~filed with the SEC and, subject~~ disseminated to the ~~Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case~~ Stockholders as and to the extent required by ~~applicable Law~~United States federal securities Laws and the rules and regulations of the SEC promulgated thereunder (the “Federal Securities Laws”). Parent and ~~Sub, on~~ Merger Sub shall cause the ~~one hand~~Offer Documents to comply in all material respects with the Federal Securities Laws. Parent and Merger Sub shall deliver copies of the proposed forms of the Offer Documents (including any amendments or supplements thereto) to the Company within a reasonable time prior to the dissemination or filing thereof for review and comment by the Company and its counsel, and shall consider in good faith any comments of the Company. Each of Parent, on Merger Sub and the ~~other hand, agree~~ Company shall respond promptly to any comments of the SEC or its staff with respect to the Offer or the Offer Documents and promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect or as otherwise required by ~~Law~~the Federal Securities Laws. Parent and Merger Sub ~~further agree to take all steps necessary to~~ shall amend or supplement the Offer Documents and cause the Offer ~~Documents~~ 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~~the Federal Securities Laws and subject to the terms and conditions of this Agreement. ~~The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and~~ Parent and Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel with copies of any written comments, ~~whether written or oral~~and shall inform them of any oral comments, that Parent, Merger Sub or their counsel ~~may~~ receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed 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~~ hereby consents to ~~review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments~~ the inclusion in the Offer Documents of the Company Board Recommendation as it may be amended or modified, and ~~its legal counsel with respect thereto~~until but not after it is withdrawn, in each case as permitted by this Agreement. (cf) Parent shall ~~provide or~~ cause to be provided to Merger Sub ~~promptly following~~ all of the ~~expiration~~ funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement with respect to consummation of the Offer and the Merger and payment or ~~any subsequent extension~~ issuance of consideration contemplated by this Agreement in respect 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 2 contracts

Samples: Merger Agreement (Bristol Myers Squibb Co), Merger Agreement (Amylin Pharmaceuticals Inc)

The Offer. (a) ~~Provided that~~ Subject to the last sentence of this ~~Agreement shall~~ Section 1.1(a), as promptly as practicable (but in any event not ~~have been terminated in accordance with Section 8.1 and none~~ later than five business days after the public announcement of the ~~events described in any~~ execution and delivery of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~this Agreement), ~~Sub shall, and~~ Parent ~~shall~~ will cause ~~Sub to,~~ Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder~~"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 a Person other than the Person in whose name the certificate for such Shares is registered, or any applicable federal back-up withholding), provided, however, that Parent may designate another direct or indirect subsidiary of Parent as the bidder thereunder (within the meaning of Rule 14d-1(e) under the Exchange Act”)) , in which event references herein to Purchaser will be deemed to apply to such subsidiary, as applicable. Notwithstanding the foregoing, if between the date of this Agreement and the Effective Time 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 ~~within ten (10) business days following the date hereof. The obligations of Sub~~ and to accept for payment and to pay for ~~any~~ Shares validly tendered in the Offer and not withdrawn ~~prior to the expiration of the Offer (as it may be extended~~ in accordance ~~with requirements of this Section 1.1(a)) shall~~ therewith will be subject to, and only ~~to the~~ to, those conditions set forth in Annex ~~III hereto. Subject to~~ A hereto (the "OFFER CONDITIONS"). (b) Without the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the ~~Offer; provided~~Company, ~~however, that Sub shall~~ Purchaser will not, and Parent ~~shall~~ will cause ~~Sub~~ Purchaser not to, (i) decrease ~~the Offer Price~~ or change the form of ~~consideration in which any component of~~ the ~~Offer Price is payable~~Per Share Amount, (ii) decrease the number of Shares sought in the Offer, (iii) amend or waive ~~or change~~ the Minimum Condition (as defined in Annex ~~III~~ A hereto)) or impose conditions other than the Offer Conditions on the Offer, ~~modify or amend any~~ (iv) extend the expiration date of the ~~conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition~~ Offer (the "EXPIRATION DATE") (which will initially be 20 business days following the commencement of the Offer) except (A) as required by Law, (B) that, in ~~each case~~ the event that any condition to the Offer is not satisfied or waived at the time that the Expiration Date would otherwise occur, (1) Purchaser must extend the Expiration Date for an aggregate of 10 additional business days to the extent necessary to permit such condition to be satisfied and (2) Purchaser may, in its sole discretion, extend the Expiration Date for such additional period as it may determine to be appropriate (but not beyond June 30, 1999) to permit such condition to be satisfied, and (C) that, in the event that the OCC Condition (as defined in Annex A hereto) is not satisfied, and all other Offer Conditions have been satisfied or waived at the time that the Expiration Date (as extended pursuant to Section 1.1(b)(iv)(A) or (B)), would have otherwise occurred, Purchaser must either irrevocably waive the OCC Condition or extend the Expiration Date (but not beyond the date that is 60 calendar days from the date of the filing with the Office of the Comptroller of the Currency (the "OCC") in respect of the OCC Condition) to the extent necessary to permit the OCC Condition to be satisfied, or (v) amend any term of the Offer in any manner materially adverse to Shareholders (including without limitation to result in any extension which would be inconsistent with the ~~holders~~ preceding provisions 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 date that is twenty-one (21) business days after commencement of the Offer or the last extension (as permitted in accordance with this ~~Section 1.1~~sentence), ~~if any~~provided, ~~of the Offer~~however, ~~whichever is later~~ that (~~the “Expiration Date”~~1) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to ~~the parties’ respective rights~~ applicable legal requirements, Parent may cause Purchaser to ~~terminate this Agreement in accordance with Section 8.1~~waive any Offer Condition, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition, in Parent's sole discretion and (2) ~~shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend~~ the Offer ~~if at~~ may be extended in connection with an increase in the ~~scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up~~ consideration to ~~two periods of ten (10) business days per extension or (iii) extend~~ be paid pursuant to the Offer ~~for any period required by any rule, regulation or interpretation~~ so as to comply with applicable rules and regulations of the ~~United States~~ Securities and Exchange Commission (“the "SEC”"). Except as set forth above and subject to applicable legal requirements, Purchaser may amend the Offer or waive any Offer Condition in its sole discretion. Assuming the ~~staff thereof~~prior satisfaction or waiver of the Offer Conditions, ~~applicable~~ Parent will cause Purchaser to ~~the Offer. In addition to the foregoing~~ accept for payment, and ~~excluded from any such limitations~~pay for, ~~Sub also may provide a “subsequent offering period”~~ in accordance with ~~Rule 14d-11 under~~ the ~~Exchange Act. (b) On the date of commencement~~ terms of the Offer, ~~Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares ~~that have been~~ validly tendered and not withdrawn pursuant to the Offer ~~and that Sub is obligated to accept for payment pursuant to~~ as soon as practicable after the ~~Offer and permitted to accept for payment under applicable Law~~Expiration Date or any extension thereof.

Appears in 2 contracts

Samples: Merger Agreement (Federated Department Stores Inc /De/), Merger Agreement (Fingerhut Companies Inc)

The Offer. (a) Provided ~~that~~ this Agreement shall not have been terminated in accordance with Section ~~8.1 and none~~ 8.1, the Purchaser (or one or more other direct or indirect wholly-owned subsidiaries of ~~the events described in any of paragraphs (a~~Parent) ~~or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub~~ shall, not later than one business day after execution of this Agreement, publicly announce the transactions contemplated hereby, and ~~Parent shall cause Sub to~~not later than five business days after execution of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder, the “~~"Exchange Act”")), an offer to purchase all Shares at a price of $10.00 per Share (the "Per Share Price"), 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 excluding Out of the Money Options (as defined below)) ~~the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares~~ being validly tendered and not withdrawn prior to the expiration of the Offer (~~as it may be extended in accordance with requirements of this Section 1.1(a)~~the "Minimum Condition") ~~shall be subject only to~~ and the further conditions set forth in this Agreement and Annex ~~III hereto. Subject to the prior satisfaction or waiver by Parent or Sub~~ I of ~~conditions set forth in Annex III hereto~~this Agreement, ~~Sub shall, and Parent~~ shall ~~cause Sub to, consummate the Offer in accordance with its terms and~~ accept for payment and pay for ~~all~~ Shares ~~tendered and not withdrawn promptly following the acceptance of Shares for payment~~ purchased pursuant to the Offer. The initial expiration date of the Offer shall be May 18, 1998. Parent shall provide or cause to be provided to the Purchaser on a timely basis the funds necessary to accept for payment and pay for any Shares that the Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer, and shall cause the Purchaser and the Merger Sub to fulfill all of their respective other obligations under this Agreement. The Offer shall be made by means of an offer to purchase (containing the ~~“Offer to Purchase”) that contains~~ Minimum Condition and the ~~terms~~ further conditions set forth in this Agreement and Annex I. Simultaneously with the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition commencement of the Offer, ~~in each case in any manner adverse to~~ the ~~holders of~~ Purchaser shall file with the Company Common Stock, impose any conditions to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (~~“SEC”), or~~ the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b"Commission") ~~On the date of commencement of the Offer, Parent and Sub shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements ~~thereto~~hereto, the ~~“Offer Documents”~~"Schedule 14D-1")~~. Subject~~ , which shall have been provided to ~~Section 5.2,~~ the Company ~~hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of~~ such that the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to ~~review~~ promptly comment thereon. Parent, the Purchaser and ~~comment on~~ the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Merger Sub agree to provide the Company ~~with~~ and its counsel any ~~comments, whether written or oral, that~~ comments the Parent, the Purchaser or the Merger Sub or their counsel may receive from ~~time to time prior to~~ the ~~expiration or termination of the Offer, from the SEC~~ Commission or its staff with respect to the ~~Offer Documents,~~ Schedule 14D-1 promptly ~~upon~~ after the receipt of such comments. For purposes of this Agreement, ~~and~~ "Out of the Money Options" shall mean any ~~written~~ option, warrant or ~~oral responses thereto, and~~ other contractual right to purchase shares of the Common Stock of the Company ~~shall~~ which as of the date hereof have an exercise price per Share of Common Stock equal to or greater than the Per Share Price. (b) The Purchaser expressly reserves the right to ~~consult with Parent, Sub~~ modify the terms and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration conditions of the Offer ~~or any subsequent extension thereof~~from time to time, ~~as applicable~~except that, ~~all funds necessary to promptly pay in full in cash~~ without the ~~aggregate Offer Price for those Shares that have been validly tendered and~~ prior written approval of the Company, the Purchaser shall not ~~withdrawn pursuant to~~ amend the Offer ~~and that Sub is obligated~~ (i) to ~~accept for payment~~ reduce the cash price per Share to be paid pursuant thereto, (ii) to reduce the ~~Offer and permitted~~ number of Shares to ~~accept for payment under applicable Law.~~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

Appears in 2 contracts

Samples: Merger Agreement (S Acquisition Corp), Merger Agreement (Simulation Sciences Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 9.1 and ~~none~~ subject to the provisions of this Agreement, including the conditions to the Offer set forth in Exhibit A hereto, as promptly as practicable after the date of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived~~ public announcement by Parent ~~or Sub)~~and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, ~~commence (~~commence, within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act, the ~~“Exchange Act”))~~ Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub to~~ and accept for ~~payment~~ payment, and to pay ~~for~~ for, any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in ~~Annex III hereto~~Exhibit A (the "Offer Conditions") (any one or more of which may be waived in whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)). ~~Subject~~ Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares sought in the Offer, (ii) decrease the price per Share, (iii) impose any conditions to the ~~prior satisfaction~~ Offer in addition to the Offer Conditions or ~~waiver~~ modify the Offer Conditions in a manner adverse to the holders of Shares (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in (b) below, extend the Offer, (v) change the form of consideration payable in the Offer (other than by adding consideration) or (vi) make any other change or modification in any of the terms of the Offer in any manner that is adverse to the holders of Shares. (b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. Parent and Sub agree that Sub will not terminate the Offer between scheduled expiration dates (except in the event that this Agreement is terminated pursuant to Section 9.1) and that, in the event that Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due to the failure of one or ~~Sub~~ more of ~~conditions set forth in Annex III hereto~~the Offer Conditions, unless this Agreement shall have been terminated pursuant to Section 9.1, Sub shall, and Parent shall cause Sub to, ~~consummate~~ extend 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~~ such period or periods as shall be ~~made~~ determined 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 Sub until such ~~conditions, to increase~~ date as the Offer ~~Price and to make any other changes in the terms of the Offer~~Conditions have been satisfied or such later date as required by applicable law; provided, however, that nothing herein shall require Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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~~ Outside Date~~”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)~~. Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Sub ~~shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and~~ may, without the consent of the Company, (i) extend the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the~~ Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended ~~Expiration Date~~ expiration date of the ~~Minimum Condition is~~ Offer any of the Offer Conditions shall not ~~satisfied~~be satisfied or waived, ~~for up to two periods of ten~~ until such time as such conditions are satisfied or waived and (~~10) business days per extension or (iii~~ii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the ~~Offer~~Offer or as might be required by the NYSE. ~~In addition to the foregoing and excluded from any such limitations,~~ Sub ~~also may~~ shall not provide for a “subsequent offering ~~period”~~ period in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept and pay for 16,730,502 Shares validly tendered and not withdrawn pursuant to the Offer that Sub is permitted to accept and exchange for under applicable law, as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act; provided, however, that no such payment shall be made until after Parent and Sub shall have calculated how cash should be prorated if more than 16,730,502 Shares are validly tendered and not withdrawn pursuant to the Offer. If this Agreement is terminated by either Parent or Sub or by the Company, Sub shall, and Parent shall cause Sub to, promptly terminate the Offer. (bc) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO (together with all supplements and amendments thereto, the "Schedule TO") with respect to the Offer ~~(together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase~~ and a ~~form of~~ related letter of ~~transmittal~~ transmittal, and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub ~~agree to take all commercially reasonable steps necessary to~~ shall cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares, in each case~~ Shares as and to the extent required by applicable ~~Law~~federal securities laws. Parent and ~~Sub~~Sub agree that they shall cause the Schedule TO, on the ~~one hand,~~ Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all material respects with the Exchange Act and the ~~Company~~rules and regulations thereunder and other applicable laws. Parent, on Sub and the ~~other hand, agree~~ Company each agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to their filing with the ~~SEC, and Parent and Sub shall give due consideration~~ SEC or dissemination to ~~all reasonable additions, deletions or modifications thereto suggested by~~ the ~~Company and its legal counsel~~Company's stockholders. ~~In addition,~~ Parent and Sub agree to provide the Company ~~with~~ and its counsel any ~~comments, whether written or oral, that~~ comments Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and ~~any written or oral responses thereto, and the Company shall have the right~~ to ~~consult~~ cooperate with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its ~~legal~~ counsel ~~with respect thereto~~in responding to such comments. (cd) Parent shall provide or cause to be provided to Sub ~~promptly following the expiration of the Offer or any subsequent extension thereof, as applicable,~~ on a timely basis all funds necessary to ~~promptly~~ accept for payment, and pay ~~in full in cash the aggregate Offer Price~~ for, any Shares accepted for ~~those Shares~~ payment that ~~have been~~ are validly tendered and not withdrawn pursuant to the Offer and that Sub is ~~obligated~~ permitted to accept for payment pursuant to the terms and conditions of the Offer and ~~permitted to accept for payment~~ under applicable ~~Law~~law.

Appears in 2 contracts

Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated~~ Agreement, as promptly as practicable but in ~~accordance with Section 8.1 and none~~ no event later than five business days after the date of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived~~ public announcement by Parent ~~or Sub)~~and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, commence ~~(within~~ the ~~meaning~~ Offer. The obligation of ~~Rule 14d-2 under the Securities Exchange Act~~ Sub to, and of ~~1934~~Parent to cause Sub to, ~~as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”))~~ commence the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub to~~ and accept for ~~payment~~ payment, and to pay ~~for~~ for, any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase Exhibit A (the “"Offer ~~to Purchase”~~Conditions") ~~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~~which may be waived in whole or in part by Sub in its reasonable discretion, ~~to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however,~~ except that Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer,~~ waive ~~or change~~ the Minimum Condition (as defined in ~~Annex III hereto), modify or amend any~~ Exhibit A) without the consent of the Company) and to the terms and conditions ~~set forth~~ of this Agreement. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided in ~~Annex III hereto~~ the next sentence, extend the Offer, (v) change the form of consideration payable in the Offer or ~~otherwise modify or~~ (vi) amend any other term ~~or condition~~ of the ~~Offer, in each case~~ Offer 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof)Shares. Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Sub ~~shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and~~ may, without the consent of the Company, (i) extend the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the~~ Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended ~~Expiration Date~~ expiration date of the ~~Minimum Condition is~~ Offer any of the Offer Conditions shall not ~~satisfied~~be satisfied or waived, ~~for up to two periods of ten~~ until such time as such conditions are satisfied or waived, (~~10) business days per extension or (iii~~ii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ Securities and Exchange Commission (“the "SEC~~”),~~ ") or the staff ~~thereof,~~ thereof applicable to the ~~Offer~~Offer and (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence. ~~In addition~~ Subject to the ~~foregoing~~ terms and ~~excluded from any such limitations~~conditions of the Offer and this Agreement, Sub ~~also may provide a “subsequent offering period” in accordance with Rule 14d-11 under~~ shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the ~~Exchange Act~~Offer that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration of the Offer. (b) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule 14D-1 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents”"). ~~Subject to Section 5.2, the Company hereby consents to the inclusion in~~ Parent and Sub agree that the Offer Documents ~~of the recommendation and the approval of the Company Board of Directors referred~~ shall comply as to ~~in Section 3.20(a). The Offer Documents will comply~~ form in all material respects with ~~all applicable provisions~~ 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 the Offer ~~Documents to be filed with~~ Documents, on the ~~SEC and~~date first published, ~~subject~~ sent or given to the Company~~’s compliance with Section 1.2(c)~~'s shareholders, ~~disseminated~~ shall not contain any untrue statement of a material fact or omit to ~~holders of Shares~~state any material fact required to be stated therein or necessary in order to make the statements therein, in ~~each case as and~~ light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the ~~extent required~~ Company or any of its shareholders specifically for inclusion or incorporation by ~~applicable Law~~reference in the Offer Documents. ~~Parent and Sub~~Each of Parent, ~~on the one hand,~~ Sub and the ~~Company, on the other hand,~~ Company agree promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Sub further 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~~the Company's shareholders, in each case as and to the extent required by applicable ~~Law~~federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to their filing with the ~~SEC, and Parent and Sub shall give due consideration~~ SEC or dissemination to ~~all reasonable additions, deletions or modifications thereto suggested by~~ the ~~Company and its legal counsel~~shareholders of the Company. ~~In addition,~~ Parent and Sub agree to provide the Company ~~with~~ and its counsel any ~~comments, whether written or oral, that~~ comments Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub ~~promptly following~~ on a timely basis the ~~expiration of the Offer or any subsequent extension thereof, as applicable, all~~ funds necessary to ~~promptly~~ accept for payment, and pay ~~in full in cash the aggregate Offer Price for those~~ for, any Shares that ~~have been validly tendered and not withdrawn pursuant to the Offer and that~~ Sub is becomes obligated to accept for ~~payment~~ payment, and pay for, pursuant to the ~~Offer and permitted to accept for payment under applicable Law~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (International Business Machines Corp), Merger Agreement (Software Artistry Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 7.1 and none of the events ~~described~~ set forth in ~~any of paragraphs (a) or (b) of Annex III hereto~~ Exhibit A shall have occurred and be ~~continuing~~ continuing, as promptly as practicable but in no event later than ten (~~unless waived by Parent or Sub)~~10) Business Days after the date of this Agreement, ~~Sub shall, and~~ Parent shall cause Sub to commence the Offer. The obligation of Sub to, ~~commence~~ and of Parent to cause Sub to, accept for payment, and pay for, any Shares tendered pursuant to the Offer shall be subject to the satisfaction of each of the conditions set forth in Exhibit A (~~within~~ any of which may be waived by Sub in its sole discretion), provided, however, that Sub will return or cause to be returned all stock certificates tendered to it by any holders of Shares if the ~~meaning~~ Offer expires or terminates without Sub having accepted all of ~~Rule 14d-2 under~~ the ~~Securities Exchange Act of 1934,~~ shares validly tendered for payment pursuant to the Offer (the time at which such acceptance for payment occurs being referred to herein as ~~amended (together with the rules and regulations promulgated thereunder,~~ the “~~Exchange Act~~Offer Closing”)) . The expiration date of the Offer ~~within ten (10) business days~~ shall be the 20th Business Day following the ~~date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration~~ commencement of the Offer (~~as it may be extended~~ the “Expected Expiration Date”). Sub expressly reserves the right to modify the terms of the Offer with at least two (2) business days written notice to the Company, setting forth in ~~accordance with requirements~~ full detail any such change, except that, without the consent of ~~this Section 1.1(a)~~the Company, Sub shall not (i) ~~shall be~~ reduce the number of Shares subject ~~only~~ to the Offer, (ii) reduce the Offer Price, (ii) modify or add to the conditions set forth in ~~Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto~~Exhibit A, ~~Sub shall~~(iii) except as provided below, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to extend the Offer~~. The Offer shall be made by means of an offer to purchase~~ , (~~the “Offer to Purchase”~~iv) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration payable in ~~which any component of~~ the Offer ~~Price is payable, decrease~~ or (v) otherwise amend or modify the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify or amend any other term or condition of the Offer, in each case Offer 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) may extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the ~~Offer~~Offer or for any period agreed upon by Parent and the Company. ~~In addition~~ On the terms and subject to the ~~foregoing~~ conditions of the Offer and ~~excluded from any such limitations~~this Agreement, Sub ~~also may provide~~ shall promptly pay for all Shares validly tendered and not withdrawn pursuant to the Offer that Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer and, during any extension of the Offer pursuant to a “subsequent offering ~~period” in accordance with~~ period under Rule 14d-11 under the Exchange Act, as soon as practicable after Shares are validly tendered. (b) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause ~~the~~ such Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares,~~ the Shares in ~~each case as~~ accordance with applicable federal securities laws. The Company and its counsel shall be given at least two (2) Business Days to review and comment on the Offer Documents (including any amendment thereto) prior to the ~~extent required by applicable Law.~~ filing thereof with the SEC. (c) During the period(s) that the Offer is in effect, each of Parent and Sub, on the one hand, and the ~~Company,~~ Company on the other hand, ~~agree to~~ will (i) promptly ~~correct any information provided by it for use in~~ inform the ~~Offer Documents if and to the extent that it shall have become false or misleading in~~ other of any material ~~respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed~~ communication with ~~the SEC and disseminated to~~ holders of ~~Shares~~Company Common Stock, ~~in each case as and~~ or any person purporting to ~~the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment~~ act on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments~~behalf, and any ~~written or oral responses thereto~~communication with any Governmental Entity of which it becomes aware, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer concerning this Agreement or any ~~subsequent extension thereof, as applicable, all funds necessary to promptly pay~~ Transaction and (ii) keep the other reasonably informed of developments regarding the number of Shares tendered in ~~full in cash~~ or withdrawn from 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 LawOffer.

Appears in 2 contracts

Samples: Tender Offer Agreement (Unioil), Tender Offer Agreement (Petroleum Development Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~Article VIII hereof, ~~Sub~~ Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, commence (within the meaning 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 ~~within~~ as promptly as reasonably practicable following the execution of this Agreement, but not later than ten (10) ~~business days~~ Business Days following the date ~~hereof~~of this Agreement; provided, however, that such ten (10) Business Day period shall be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The ~~obligations~~ obligation of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shallPurchaser to, and of Parent ~~shall~~ to cause ~~Sub~~ Purchaser to, ~~consummate the Offer in accordance with its terms and~~ accept for payment and pay for ~~all~~ any Shares tendered in the Offer and not withdrawn ~~promptly following~~ shall be subject to the ~~acceptance~~ satisfaction of those conditions set forth in Annex I. The conditions to the Offer set forth on Annex I are for the sole benefit of Parent and Purchaser and each of Parent and 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 Offer Price, or to make any other changes in the terms and conditions of the Offer. The Company agrees that no Shares ~~for payment~~ held by the Company or any of its Subsidiaries shall be tendered 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 on Annex I, (v) add to, amend or modify the conditions to the Offer set forth on Annex I in any manner that is adverse to the holders of the Shares, or (vi) undertake any extension of the Offer not specifically provided for or contemplated in this Agreement. (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains the~~ having such terms ~~set forth in this Agreement~~ and ~~the~~ conditions as are set forth in Annex ~~III~~ I hereto. ~~Parent expressly reserves~~ As soon as practicable on the ~~right to waive any of such conditions, to increase~~ date the Offer ~~Price and to make any other changes in~~ is commenced (within the ~~terms~~ meaning of Rule 14d-2 under the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III heretoExchange Act), ~~modify or amend any of~~ Parent and Purchaser shall file with the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) ~~On the date of commencement of the Offer, Parent and Sub 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, exhibits and supplements ~~and exhibits~~ thereto, the “Schedule TO”~~). The Schedule TO~~ ) with respect to the Offer that shall ~~include~~comply in all material respects with the provisions of all applicable federal securities laws, and shall contain (including as ~~exhibits,~~ an exhibit) or incorporate by reference the Offer to Purchase and ~~a form~~ forms of the related letter of transmittal and summary advertisement (~~collectively~~which documents, together with any supplements, exhibits or amendments ~~and supplements~~ thereto, and any other schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the “Offer Documents”). ~~Subject to Section 5.2,~~ The Parent and Purchaser shall give the Company ~~hereby consents~~ one (1) Business Day advance notice prior to filing the Schedule TO. 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 promptly furnish to 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 the Schedule TO and the Offer ~~Documents~~ Documents. Parent and Purchaser hereby further agree that the Schedule TO and 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 ~~recommendation and the approval~~ circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Parent or Purchaser with respect to information supplied by or on behalf of the Company ~~Board of Directors referred to~~ specifically for inclusion or incorporation by reference in ~~Section 3.20(a)~~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 ~~will comply~~ 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 ~~all material respects with all applicable provisions~~ order to make the statements therein, in light of the ~~Exchange Act~~circumstances under which they were made, not misleading. Each of Parent, Purchaser and the Company shall promptly correct any information provided by or on behalf of it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and ~~Sub agree to~~ Purchaser shall take all ~~commercially reasonable~~ steps necessary to cause the Schedule TO and the Offer ~~Documents~~ Documents, as amended, to reflect such corrected information, to be filed with the SEC ~~and~~and the other Offer Documents, ~~subject~~ as amended to reflect such corrected information, to be disseminated to the Company’s ~~compliance with Section 1.2(c), disseminated to holders of Shares~~stockholders, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on ~~the Schedule TO and~~ any ~~amendment thereto~~ Offer Documents before ~~it is~~ they are filed with the SEC, and Parent and ~~Sub~~ Purchaser shall give due consideration to all the reasonable additions, deletions or ~~modifications~~ changes suggested thereto ~~suggested~~ by the Company and its ~~legal~~ counsel. In addition, Parent and ~~Sub agree to~~ Purchaser shall provide the Company and its counsel with copies of any written comments, ~~whether written or oral~~and shall inform them of any oral comments, that Parent, ~~Sub~~ Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or the Offer ~~Documents,~~ Documents promptly ~~upon~~ after 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 such written responses ~~to such comments or communications,~~ and Parent and ~~Sub~~ Purchaser shall give due consideration to all reasonable ~~views and comments of~~ additions, deletions or changes suggested thereto by the Company and its ~~legal counsel with respect thereto~~counsel. (cd) ~~Parent~~ Subject to the terms and conditions of this Agreement and the Offer, the Offer to Purchase shall provide that the Offer shall 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 it shall not terminate or ~~cause to be provided to Sub promptly following~~ withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer described in Annex I 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. Subject to the rights of the Purchaser to terminate this Agreement in accordance with Article VIII, 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, either the Company or Parent may cause Purchaser to for one (1) or more consecutive increments of not more than five (5) Business Days, 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. Notwithstanding the foregoing, Parent may, without the consent of the Company, cause Purchaser to (i) extend the expiration date of the Offer (as it may be extended) for any ~~subsequent extension thereof~~period required by applicable rules, interpretations and regulations of the SEC in connection with the Offer and (ii) extend the expiration date of the Offer (as ~~applicable~~it may be extended) for up to two periods, ~~all funds necessary~~ each for up to ~~promptly pay in full in cash~~ five (5) Business Days, if on such expiration date the ~~aggregate~~ conditions for the Offer ~~Price for those~~ 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 ninety percent (90%) of the then issued and outstanding Shares on a fully diluted basis. Notwithstanding the foregoing, (i) Purchaser (or Parent on its behalf) may, in its sole discretion, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 promulgated under the Exchange Act and (ii) in addition, Purchaser shall, if requested by the Company, make available a subsequent offering period in accordance with Exchange Act Rule 14d-11 of not less than ten (10) Business Days. (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 as promptly as practicable 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, without interest, subject to reduction only for any dividends or other distributions declared thereon between the date hereof and the Acceptance Time. Parent shall provide, or cause to be provided to Purchaser, on a timely basis, the funds necessary to pay for any Shares that ~~Sub~~ Purchaser accepts or is obligated to accept for payment pursuant to the ~~Offer and permitted to accept for payment under applicable Law~~Offer.

Appears in 2 contracts

Samples: Merger Agreement (Stiefel Laboratories, Inc.), Merger Agreement (Barrier Therapeutics Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article VIII and none of the events ~~described~~ set forth in ~~any of paragraphs~~ Exhibit A shall have occurred, as promptly as practicable but in no event later than seven (a7) ~~or (b) of Annex III hereto have occurred and be continuing (unless waived~~ business days following the public announcement by Parent ~~or Sub)~~and the Company of the Offer and Merger, Sub shall, and Parent shall cause Sub to, ~~commence (~~commence, within the meaning 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 ~~within ten (10) business days following~~ at the ~~date hereof~~Offer Price. The ~~obligations~~ obligation of Sub to, and of Parent to cause Sub to, consummate the Offer and accept for ~~payment~~ payment, and to pay ~~for~~ for, any Shares ~~validly~~ tendered and not withdrawn ~~prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the conditions set forth in ~~Annex III hereto~~Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Parent and Sub in their sole discretion, except as expressly provided in the Offer Conditions) and to the rights of Parent and Sub to terminate this Agreement as provided in Section 8.1. The conditions to the Offer set forth in Exhibit A are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such conditions (other than as a result of any action or inaction of Parent or Sub that constitutes a breach of this Agreement). The initial expiration date of the Offer shall be the twentieth (20th) business day following commencement of the Offer. The Offer Price shall be net to the seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. Parent and Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price, (iii) impose any material conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement); (iv) except as provided in the next sentence, extend the Offer beyond any scheduled expiration date; (v) change the form of consideration payable in the Offer (other than adding consideration); or (vi) amend any other material terms of the Offer in a manner adverse to the holders of Shares. Notwithstanding the foregoing, Sub 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 Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied or waived; provided, however, that notwithstanding anything herein to the contrary, if any of the conditions to the Offer are not satisfied or waived on any scheduled expiration date of the Offer, Parent and Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided, further, that in no event shall Parent and Sub be required to extend the expiration date of the Offer beyond the Outside Date; (ii) 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; (iii) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 15 business days beyond the latest expiration date that would otherwise be permitted under clauses (i) and (ii) of this sentence if there shall not have been tendered a sufficient number of Shares to enable the Merger to be effected without a meeting of the Company's stockholders in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the "DGCL"); and (iv) after the Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the Exchange Act, in each case subject to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. Subject to the ~~prior satisfaction or waiver by Parent or Sub~~ foregoing and applicable law and upon the terms and subject to the conditions of ~~conditions set forth in Annex III hereto~~the Offer, Sub shall, and Parent shall cause ~~Sub~~ it to, ~~consummate the Offer in accordance with its terms and~~ accept for ~~payment~~ payment, as promptly as permitted under applicable securities laws, and pay for ~~all Shares tendered and not withdrawn~~ (after giving effect to any required withholding tax), as promptly ~~following~~ as practicable after the ~~acceptance of Shares~~ date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "Acceptance Date") all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. . (b) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") ~~that contains~~ subject to the ~~terms~~ Offer Conditions set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) Exhibit A. On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO (together with all supplements or amendments thereto, the "Schedule TO") with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include,~~ contain as ~~exhibits,~~ an exhibit or incorporate by reference the Offer to Purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents”")~~. Subject~~ , and Parent and Sub shall cause to ~~Section 5.2, the Company hereby consents to the inclusion in~~ be disseminated the Offer Documents to holders of Shares as and to the ~~recommendation~~ extent required by applicable federal securities laws. Parent and Sub agree that the ~~approval of the Company Board of Directors referred to in Section 3.20(a). The~~ Offer Documents ~~will~~ shall comply in all material respects with ~~all applicable provisions~~ the Exchange Act and the Offer Documents, 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 ~~Exchange Act~~circumstances under which they were made, not misleading, except that no covenant is made by Parent or Sub with respect to information supplied by the Company or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Sub and the Company agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Sub further agree to take all ~~commercially reasonable~~ steps necessary to cause the ~~Offer Documents~~ Schedule TO, as so corrected, to be filed with the SEC ~~and~~and the other Offer Documents, ~~subject~~ as so corrected, to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to their filing with the ~~SEC, and Parent and Sub shall give due consideration~~ SEC or dissemination to ~~all reasonable additions, deletions or modifications thereto suggested by~~ the ~~Company and its legal counsel~~stockholders of the Company. ~~In addition,~~ Parent and Sub agree to provide the Company ~~with~~ and its counsel any ~~comments, whether written or oral, that~~ comments Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and ~~any written or oral responses thereto, and~~ to cooperate with the Company ~~shall have the right to consult with Parent, Sub~~ and ~~their~~ its counsel ~~prior to~~ in responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 2 contracts

Samples: Merger Agreement (Riviana Foods Inc /De/), Merger Agreement (Ebro Puleva Partners G.P.)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and ~~none of the events described in any of paragraphs (a) or (b) of Annex III hereto~~ no event shall have occurred and ~~be continuing~~ no circumstance shall exist which would result in a failure to satisfy any of the conditions or events set forth in Annex A hereto (~~unless waived by Parent or Sub~~the "Offer Conditions"), ~~Sub~~ Purchaser shall, as soon as reasonably practicable after the date hereof (and ~~Parent shall cause Sub to~~in any event within five business days from the date of public announcement of the execution hereof), commence an offer (~~within~~ the ~~meaning~~ "Offer") to purchase for cash all of ~~Rule 14d-2 under~~ the ~~Securities Exchange Act~~ issued and outstanding shares of ~~1934~~Common Stock, par value $.14 2/3 per share (referred to herein as ~~amended (together with~~ either the ~~rules and regulations promulgated thereunder~~"Shares" or "Company Common Stock"), of the ~~“Exchange Act”))~~ Company at a price of $80.00 per Share, net to the ~~Offer within ten (10) business days following the date hereof~~seller in cash. The ~~obligations~~ obligation of ~~Sub~~ Purchaser to accept for payment ~~and to pay for any~~ Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction or waiver by ~~Parent or Sub~~ Purchaser of ~~conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate~~ the Offer ~~in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer~~Conditions. ~~The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent~~ Purchaser expressly reserves the ~~right~~ right, in its sole discretion, to waive any of such ~~conditions, to increase~~ condition (other than the Minimum Condition as defined in the Offer ~~Price~~ Conditions) and to make any other changes in the terms or conditions of the Offer~~; provided~~, ~~however~~provided that, ~~that Sub shall not~~unless previously approved by the Company in writing, ~~and Parent shall cause Sub not to~~no change may be made which decreases the price per Share payable in the Offer, ~~decrease the Offer Price or change~~ changes the form of consideration payable in ~~which any component of~~ the Offer ~~Price is payable~~(other than by adding consideration), ~~decrease~~ reduces the maximum number of Shares ~~sought~~ to be purchased in the Offer, ~~waive or change the Minimum Condition (as defined in Annex III hereto),~~ modify or amend ~~any~~ 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 ~~set forth~~ of this Agreement, including but not limited to the Offer Conditions, it will accept for payment and pay for Shares as soon as it is permitted to do so under applicable law; provided that, Purchaser shall have the right, in ~~Annex III hereto or otherwise modify or amend any other term or condition~~ its sole discretion, to extend the Offer for up to five business days, notwithstanding the prior satisfaction of the Offer, in ~~each case in any manner adverse~~ order to attempt to satisfy the ~~holders~~ requirements of Section 253 of the ~~Company Common Stock, impose any conditions to~~ DGCL. It is agreed that the Offer ~~that~~ Conditions are ~~not set forth on Annex III hereto, or extend~~ for the ~~Offer beyond a date that is twenty-one (21) business days after commencement~~ benefit of Purchaser and may be asserted by Purchaser regardless of the ~~Offer~~ circumstances giving rise to any such condition (except for any action or ~~the last extension (as permitted in accordance~~ inaction by Purchaser or Parent constituting a breach of this Agreement) or, except 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~~ respect to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition~~) shall not~~ , may be ~~satisfied~~ waived by Purchaser, in whole or ~~waived for up to two periods of not more than ten (10) business days per extension, (ii)~~ in part at any time and from time to time, ~~extend~~ in its sole discretion. Purchaser further agrees that the Holding Co. Merger and the Woodbank Merger will not be closed until the Offer ~~if at~~ Conditions are otherwise satisfied or waived by Purchaser, and immediately prior to the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation purchase of the ~~United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable~~ Shares by Purchaser pursuant to the Offer. ~~In addition~~ 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 ~~foregoing~~ Offer set forth in clause (h) of Annex A and ~~excluded from any~~ the Minimum Condition, at the request of the Company the Purchaser, at its option, shall extend the Offer until the earlier of (1) such ~~limitations~~time as such conditions are satisfied or waived, ~~Sub also~~ and (2) the date chosen by the Company which shall not be later than (x) the Outside Date (as defined herein), (y) the earliest date on which the Company reasonably believes such condition will be satisfied; provided, that the Company may ~~provide a “subsequent offering period”~~ request further extensions up until the Outside Date if the Offer Conditions set forth in ~~accordance with Rule 14d-11 under~~ clause (h) and the ~~Exchange Act~~Minimum Condition are still the only Offer Condition not satisfied unless this Agreement has been terminated pursuant to the provisions of Article VIII. (b) On As soon as reasonably practicable on the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, ~~Parent and Sub~~ 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 14D-1 (the "Schedule 14D-1") with respect to the Offer with the Securities and Exchange Commission (~~together with all amendments, supplements and exhibits thereto,~~ the ~~“Schedule TO”~~"SEC"). The Schedule TO 14D-1 shall ~~include, as exhibits, the~~ contain an Offer to Purchase and ~~a form~~ forms of the related letter of transmittal (which Schedule 14D-1, Offer to Purchase and ~~summary advertisement (collectively~~other documents, together with any supplements or amendments ~~and supplements~~ thereto, are referred to herein collectively as the “"Offer Documents”"). ~~Subject to Section 5.2,~~ Parent and Purchaser agree that the Company ~~hereby consents~~ and its counsel shall be given an opportunity to review the ~~inclusion~~ Schedule 14D-1 before it is filed with the SEC. Parent, Purchaser and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents ~~of the recommendation~~ that shall have become false or misleading in any material respect, and ~~the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ Parent and ~~Sub~~ Purchaser further agree to take all ~~commercially reasonable~~ steps necessary to cause the ~~Offer Documents~~ Schedule 14D-1 as so corrected to be filed with the SEC ~~and, subject~~ and the other Offer Documents as so corrected to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect theretofederal securities laws. (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 2 contracts

Samples: 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 Section ~~8.1~~ 8.01 and ~~none of~~ provided further that the ~~events described~~ Company is prepared (in accordance with Section 2.02(c)) to file the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the date hereof (and in any event no later than 10 Business Days after the date of ~~paragraphs (a) or (b)~~ initial public announcement of ~~Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 ~~under~~ of the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days following~~ to purchase any and all of the ~~date hereof~~outstanding Shares at the Offer Price. The ~~obligations~~ obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn ~~prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the conditions set forth in Annex ~~III hereto~~A and no other conditions (the “Offer Conditions”). ~~Subject to the prior satisfaction or waiver~~ The Company agrees that no Shares held by ~~Parent or Sub~~ any of ~~conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with~~ its ~~terms and accept for payment and pay for all Shares~~ Subsidiaries will be tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ pursuant to the Offer~~. The Offer shall be made by means~~ . (b) Merger Sub, or Parent on behalf 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~~ Merger Sub, expressly reserves the right to ~~waive~~ waive, in its sole discretion, in whole or in part, any of ~~such conditions, to increase~~ the Offer ~~Price~~ Conditions and to make any ~~other changes~~ change in the terms of or conditions to the Offer; ~~provided~~provided that, ~~however~~unless otherwise provided by this Agreement or previously approved by the Company in writing (which approval may be granted or withheld by the Company in its sole discretion), ~~that Sub~~ Merger Sub, and Parent on behalf of Merger Sub, shall not, ~~and Parent shall cause Sub not to~~subject to applicable Law, (i) decrease the Offer ~~Price or~~ Price, (ii) change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (iii) decrease the number of Shares sought in the Offer, ~~waive or change the Minimum Condition~~ (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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, iv) impose ~~any~~ conditions to the Offer ~~that are not set forth on Annex III hereto, or extend~~ in addition to the Offer ~~beyond~~ Conditions, (v) amend or modify any of the Offer Conditions in a manner that adversely affects the holders of Shares, (vi) change or waive the Minimum Tender Condition or (vii) extend or otherwise change the Expiration Date other than as required or permitted by this Agreement. (c) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with this Agreement, the Offer shall expire at midnight, New York City time, on the date that is ~~twenty-one (21)~~ 20 business days ~~after~~ (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, or such subsequent time to which the ~~last extension (as permitted~~ expiration of the Offer is extended in accordance with this ~~Section 1.1)~~Agreement, ~~if any, of the Offer, whichever is later (~~the “Expiration Date”). (d) ~~except as set forth below,~~ Notwithstanding anything in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject this Agreement to the ~~parties’ respective rights to terminate~~ contrary, unless this Agreement has been terminated in accordance with Section ~~8.1~~8.01, Merger 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~~ for one or more periods of time of up to 20 Business Days per extension (the ~~initial expiration date if,~~ length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) if at any then-scheduled Expiration Date any Offer Condition has not been satisfied (and, to the extent permitted, shall not have been waived by Parent) or (ii) elect to provide a Subsequent Offering Period. The Offer Price may be increased, and the Offer may be extended to the extent required by Law in connection with such increase in the Offer Price, in each case without the consent of the Company. (e) Subject to the terms and conditions of this Agreement, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub, or Parent on behalf of Merger Sub, shall extend the Offer at the request of the Company on one or more occasions for periods of up to 20 Business Days per extension (the length of any such extension to be determined by Merger Sub (or ~~extended~~Parent on its behalf) ~~expiration of~~ in its sole discretion) up to and including the ~~Offer~~Outside Date, if at any then-scheduled Expiration Date any of the ~~conditions set forth in Annex III hereto (other than the Minimum Condition) shall~~ Offer Conditions have not be been satisfied or ~~waived for up to two periods~~ waived. In addition, Merger Sub, or Parent on behalf of ~~not more than ten (10) business days per extension~~Merger Sub, ~~(ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii)~~ shall extend the Offer for any period or periods if required by any Law, rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof or the NASDAQ Global Market (“NASDAQ”) applicable to the Offer~~. In addition~~ . (f) Following expiration of the Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a subsequent offering period or one or more extensions thereof (a “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act if, as of the 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 settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the ~~foregoing and excluded from any such limitations~~Offer, ~~Sub also may~~ that number of Shares necessary to permit the Merger to be effected without a meeting of shareholders of the Company in accordance with Section 302A.621 of the MBCA. The Offer Documents shall provide for the possibility of a “subsequent offering period” ”. (g) Subject to the foregoing, including the requirements of Rule 14d-11 of the Exchange Act, 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 (A) all Shares validly tendered and not properly withdrawn pursuant to the Offer promptly after the Expiration Date and (B) each Share validly tendered in ~~accordance~~ any Subsequent Offering Period promptly after such Share is so tendered. 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 in order to comply in whole or in part with applicable Laws. Any such delay in payment shall be effected in compliance with Rule ~~14d-11~~ 14e-1(c) under the Exchange Act. (h) 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 other applicable Tax Law. To the extent that amounts are so withheld by Merger Sub, such amounts shall be (a) paid over to the appropriate Governmental Authority and (b) On treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and withholding was made by Merger Sub. (i) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any change in the number of shares of outstanding Company Common Stock by reason of any stock dividend, stock split, recapitalization, combination, exchange of shares, merger, consolidation, reorganization or the like occurring or having a record date on or after the date of this Agreement and prior to the Acceptance Time; provided, however, that nothing in this Section 2.01(i) shall be construed as permitting the Company to take any such action or to enter into any transaction otherwise prohibited by this Agreement. (j) 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 Section 8.01. If this Agreement is terminated pursuant to Section 8.01, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares previously tendered. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly 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. (k) As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub ~~shall~~ shall: (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including any exhibits thereto, the “Schedule TO”)~~. The Schedule TO~~ , which shall ~~include~~contain an offer to purchase reflecting the terms and conditions of this Agreement, ~~as exhibits, the Offer to Purchase~~ and a form of the letter of transmittal and summary advertisement and other ancillary documents and instruments, if any, in respect of the Offer (~~collectively~~such Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments or supplements thereto, and ~~supplements~~ including exhibits thereto, the “Offer Documents”)~~. Subject to Section 5.2,~~ ; (ii) timely file with the ~~Company hereby consents~~ Commissioner of Commerce of the State of Minnesota any registration statement relating to the ~~inclusion in the~~ Offer ~~Documents~~ required to be filed pursuant to Chapter 80B of the ~~recommendation~~ Minnesota Statutes; and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (iii) cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares, in each case~~ Shares as and to the extent required by ~~applicable Law~~the Exchange Act and the MBCA. The Company shall promptly furnish to Parent and ~~Sub~~Merger Sub in writing all information concerning the Company that may be required by applicable Law or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Each of Parent, ~~on the one hand,~~ Merger Sub and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Merger Sub ~~further~~ 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 Law. The Company and its counsel shall be given a reasonable opportunity to review ~~and comment on~~ the Schedule TO ~~and any amendment thereto~~ before it is filed with the SEC, and Parent and Merger Sub shall give due consideration to ~~all~~ the reasonable additions, deletions or ~~modifications thereto~~ changes suggested by the Company ~~and~~ or its ~~legal~~ counsel. ~~In addition,~~ Parent and Merger Sub ~~agree to~~ shall promptly provide the Company and its counsel with copies of any written comments, ~~whether written or oral~~and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive ~~from time to time prior to~~ after the ~~expiration or termination of the Offer,~~ date hereof from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of ~~such~~ those 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 written responses to such ~~comments or communications~~SEC comments, and Parent ~~and Sub~~ shall give due consideration to ~~all~~ the reasonable ~~views and comments of~~ additions, deletions or changes suggested thereto by the Company and its ~~legal counsel with respect thereto~~counsel. (cl) Parent and Merger Sub shall ~~provide or cause to be provided to Sub~~ promptly ~~following~~ file with the ~~expiration~~ Commissioner of Commerce of the ~~Offer or any subsequent extension thereof, as applicable,~~ State of Minnesota all ~~funds necessary~~ materials referred to ~~promptly pay~~ in ~~full in cash~~ Section 80B.04 of 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 LawMinnesota Statutes.

Appears in 1 contract

Samples: Merger Agreement (Fsi International Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article Eight hereof and none of the events ~~described~~ set forth in ~~any of paragraphs~~ Annex I hereto (athe "Tender Offer Conditions") ~~or (b) of Annex III hereto~~ shall have ~~occurred and be continuing (unless waived by Parent or Sub)~~occurred, ~~Sub shall~~as promptly as reasonably practicable, ~~and~~ but in no event later than May 15, 2000, Parent shall cause ~~Sub to,~~ the Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ including the rules and regulations promulgated thereunder), the “"Exchange Act”)") an offer to purchase all outstanding Shares at the Offer ~~within ten~~ 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 (10the "SEC") ~~business days following~~ and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the ~~date hereof~~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 ~~obligations~~ obligation of ~~Sub~~ the Purchaser to accept for payment ~~and to~~ or pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a)) shall~~ will be subject only to the satisfaction or waiver of the conditions set forth in Annex ~~III~~ I hereto~~. Subject to~~ . (b) Without the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms written consent of the ~~Offer; provided~~Company, ~~however, that Sub~~ the Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ decrease the Offer Price or change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, decrease the number of Shares sought to be purchased in the Offer, ~~waive~~ impose additional conditions to the Offer or ~~change~~ 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 "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. 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 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 business days after the time such condition 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 70% but less than 90% of the outstanding Common Shares on a fully diluted basis (excluding Options (as defined herein) which are not exercisable for 30 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 seven 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 ~~III~~ I hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Danaher Corp /De/)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 6.1 of this Agreement and none of the events ~~described~~ set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III hereto~~ I shall have occurred and be ~~continuing~~ continuing, then as promptly as reasonably practicable following the execution of this Agreement (~~unless waived by Parent or Sub~~but in no event later than fifteen (15) Business Days following the date hereof), 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 (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days~~ to purchase for cash all the shares of Company Common Stock at the Offer Price; provided, however, that Merger Sub shall not commence the Offer prior to the tenth Business Day following the date ~~hereof~~hereof without the prior written consent of the Company. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for ~~payment~~ payment, and pay for, shares of Company Common Stock validly tendered pursuant to ~~pay for any Shares~~ the Offer on or prior to the final expiration of the Offer and not withdrawn shall be subject only to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that number of shares of Company Common Stock which, together with the shares of Company Common Stock then beneficially owned by the Parent or Merger Sub (~~as it may~~ including, without limitation, the shares of Company Common Stock to be ~~extended in accordance with requirements of this Section 1.1(a)) shall be subject only~~ sold to Merger Sub pursuant to the Stock Purchase Agreement), represents at least 66-2/3% of the outstanding shares of Company Common Stock (the "Minimum Condition") and (ii) the other conditions set forth in Annex ~~III~~ I hereto. Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by Parent or Merger Sub of the Minimum Condition and the other conditions set forth in Annex ~~III hereto~~I hereto as of any expiration date of the Offer, Merger Sub shall, ~~and Parent shall cause Sub to~~in accordance with the terms of the Offer, promptly after the expiration of the Offer, consummate the Offer ~~in accordance with its terms~~ and accept for payment and pay for, and Parent shall cause Merger Sub to accept for payment and pay for, all ~~Shares~~ shares of Company Common Stock validly tendered and not withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer~~Offer (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”") ~~that contains~~ containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex ~~III~~ I hereto. Each of Parent and Merger Sub agrees that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that Merger Sub's obligation to purchase shares of Company 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 following the commencement of the Offer (the "Initial Expiration Date"). Parent and Merger Sub shall have the right to extend the Offer for one ten Business Day period for any reason in their sole discretion. The latest time and date at which the Offer, as may be extended beyond the Initial Expiration Date as permitted or required by this Section 1.1(a), shall expire shall not be later than the Outside Date (except as may otherwise be required by rule, regulation, interpretation, or position of the SEC or its staff) and is herein referred to as the "Expiration Date." Merger Sub expressly reserves the right to waive ~~any of such conditions, to increase the Offer Price and to make any other changes in~~ or modify the terms of the Offer~~; provided~~, ~~however~~except that, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the board of directors of the Company ~~Board of Directors~~ or a duly authorized committee thereof)~~. Notwithstanding the foregoing~~, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ neither Parent nor Merger 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,~~ shall (i) ~~extend~~ amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer ~~beyond~~ Price, (iii) change the ~~initial expiration date if, at any scheduled (or extended) expiration~~ form of consideration payable in the Offer, (iv) decrease the number of shares of Company Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex ~~III hereto (other than~~ I in any manner adverse to the ~~Minimum Condition) shall not be satisfied or waived for up to two periods~~ holders of ~~not more than ten (10) business days per extension~~the shares of Company Common Stock, (iivii) ~~from time to time, extend~~ amend any other term of the Offer ~~if at~~ in a manner that is adverse to the ~~scheduled or extended Expiration Date~~ holders of the ~~Minimum Condition is not satisfied~~shares of Company Common Stock, ~~for up to two periods of ten (10) business days per extension~~ or (~~iii~~viii) extend the Offer ~~for any period~~ except as expressly permitted or required by ~~any rule~~this Section 1.1(a). Each of Parent and Merger Sub agree that they shall not terminate or withdraw the Offer unless, ~~regulation or interpretation of~~ at the ~~United States Securities and Exchange Commission (“SEC”)~~Initial Expiration Date, the Minimum Condition shall not have been satisfied or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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 other conditions to the Offer ~~(together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ described in Annex I shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that not have been ~~validly tendered and not withdrawn pursuant to~~ satisfied or earlier waived. Notwithstanding the ~~Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.~~foregoing:

Appears in 1 contract

Samples: Merger Agreement (Dixon Ticonderoga Co)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article VIII hereof and none of the events ~~described~~ set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III hereto~~ A shall have occurred and be ~~continuing~~ existing, as promptly as practicable (~~unless waived~~ but in no event later than the later of (i) ten business days after a public announcement of the execution of this Agreement and (ii) the first business day following the filing by ~~Parent or Sub~~the Company with the United States Securities and Exchange Commission (the "SEC") of its Annual Report on Form 10-K for the Fiscal Year Ended December 31, --- 1999 (the "1999 10-K")), ~~Sub~~ Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, --------- commence (within the meaning 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 ~~within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of~~ at the Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject~~ Price. Subject ------------ only to the conditions set forth in Annex ~~III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III~~ A hereto, ~~Sub~~ Purchaser shall, and Parent shall cause ~~Sub~~ Purchaser to, ~~consummate the Offer in accordance with its terms and~~ accept for payment and pay for all Shares validly tendered and not withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer~~Offer prior to its expiration date. 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~~ subject to the conditions set forth in Annex ~~III~~ A hereto. ~~Parent~~ Purchaser -------- expressly reserves the right to waive any ~~of such conditions,~~ conditions to ~~increase~~ the Offer ~~Price~~ and to make any ~~other changes~~ change in the terms of or conditions to the Offer~~; provided~~, ~~however~~provided that, ~~that Sub~~ except as -------- provided in Section 1.1(d), Purchaser shall not, ~~and Parent shall cause Sub not to~~without the prior consent of the Company, (i) decrease the Offer Price or change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex A, (iv) amend any condition of the Offer set forth in Annex A, or (v) amend or waive ~~or change~~ satisfaction of the Minimum Condition (as defined in Annex ~~III~~ A hereto)~~, modify~~ . Purchaser shall on the terms and subject to the prior satisfaction or ~~amend any~~ waiver of the conditions ~~set forth in Annex III hereto or otherwise modify or amend any other term or condition~~ of the Offer, ~~in each case in any manner adverse~~ accept for payment, and pay for, Shares tendered as soon as it is legally permitted to ~~the holders of the Company Common Stock~~do so under applicable law, ~~impose any conditions~~ subject to ~~the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21~~Section 1.1(d) ~~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~~ "Acceptance Date~~”) except as set forth below, in each case without the prior written consent of the Company (such consent~~ "). Parent shall provide or --------------- cause to be ~~authorized by~~ provided to Purchaser on a timely basis the ~~Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject~~ funds necessary to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration dateaccept for payment, and ~~may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer~~pay for, any ~~of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived~~ Shares that Purchaser becomes obligated to accept for ~~up to two periods of not more than ten (10) business days per extension~~payment, ~~(ii) from time to time~~and pay for, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable pursuant to the Offer~~. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~. (b) On As soon as practicable on the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, Parent and ~~Sub~~ Purchaser shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a ~~Tender Offer~~ Statement on Schedule TO (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO") with respect to the ~~Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”)~~Offer. The Schedule TO ~~shall include,~~ will ----------- contain (including as ~~exhibits,~~ an exhibit) or incorporate by reference 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”"). ~~Subject to Section 5.2,~~ Parent and Purchaser agree that the ~~Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The~~ Offer Documents will comply in --------- all material respects with ~~all applicable~~ the provisions of applicable Federal securities laws and 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 ~~Exchange Act.~~ statements made therein, in light of the circumstances under which they were made, not misleading. (c) Each of Parent and ~~Sub agree to~~ Purchaser will take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject to~~ as promptly as practicable after the ~~Company’s compliance with Section 1.2(c), disseminated to holders~~ public announcement of ~~Shares, in each case as and to~~ the ~~extent required by applicable Law~~execution of this Agreement. Each of Parent and ~~Sub, on the one hand, and the Company, on the other hand, agree to~~ Purchaser will promptly correct any information ~~provided by it for use~~ in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law. Parent~~ respect, and ~~Sub~~ Purchaser further ~~agree to~~ will take all steps necessary to cause the Schedule TO 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 Law~~promptly as practicable. The Company and its counsel shall be given a the reasonable opportunity to review ~~and comment on~~ the Offer Documents, including the initial Schedule TO ~~and~~ (as well as all amendments or supplements thereto), before any ~~amendment thereto before it~~ such document is filed with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and ~~Sub agree to~~ Purchaser will provide the Company and its counsel with any ~~comments~~comments or other communications, whether written or oral, ~~that~~ Parent, ~~Sub~~ Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the 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 other communications~~, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto~~. (cd) ~~Parent~~ The Offer shall be made by means of an Offer to Purchase which shall provide for an initial expiration date of twenty (20) business days from the date of commencement (the "Initial Expiration Date"). Parent and Purchaser ----------------------- agree that Purchaser shall not terminate or ~~cause to be provided to Sub promptly following~~ withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to the Offer shall not have been satisfied or earlier waived; provided that notwithstanding the foregoing, Purchaser may, without the consent -------- of the Company, extend the Offer on one occasion following the time that all of the conditions to the Offer have been satisfied as of the scheduled expiration date of the Offer for a period not to exceed five (5) business days, if the number of Shares tendered, together with any Shares beneficially owned by Parent or Purchaser or any ~~subsequent extension thereof~~other subsidiary of Parent, is less than 90% of the Shares outstanding on the scheduled expiration date of the Offer; provided, further, -------- ------- that if Purchaser elects to extend the Offer as ~~applicable~~set forth in the immediately preceding proviso, the obligation of Purchaser, and of Parent to cause Purchaser to, accept for payment, purchase and pay for all ~~funds necessary to promptly pay in full in cash~~ of 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~~ not withdrawn shall be subject only to the ~~Offer~~ Minimum Condition and ~~permitted to accept for payment under applicable Law.~~the conditions set forth in Sections (a), (b) and (g) of Annex A.

Appears in 1 contract

Samples: Merger Agreement (North Face Inc)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this Agreement, and provided this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 10.1 hereof and ~~none~~ that nothing shall have occurred that would result in a failure to satisfy any of the ~~events described in any of~~ conditions set forth is paragraphs (a) or and (b) of Annex ~~III hereto have occurred and be continuing (unless waived by Parent or Sub)~~I hereto, Merger Sub shall, ~~and Parent shall cause Sub to~~as promptly as practicable after the date hereof, but in no event later than five business days following the date of public announcement of the execution of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder, the “Exchange Act”~~"1934 ACT")) the Offer ~~within ten (10) business days following the date hereof. The obligations~~ at a price of ~~Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior~~ $2.75 per Share, net to the ~~expiration of the Offer (as it may be extended~~ seller in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III heretocash, ~~Sub shall,~~ without interest and ~~Parent shall cause Sub to, consummate the Offer in accordance with its terms~~ less any required transfer 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~~withholding taxes. The Offer shall be ~~made~~ subject to the condition that there shall be validly tendered (and not withdrawn) in accordance with the terms of the Offer, prior to the expiration date of the Offer, at least that number of Shares (not including Shares tendered by ~~means~~ Parent, Merger Sub or any affiliate of ~~an offer~~ Parent), which is the smallest number of Shares that represents a majority of the outstanding Shares (excluding for purposes of this calculation all Shares owned by Parent, Merger Sub or any affiliate of Parent and any Shares held in Intek employee stock plans that cannot be tendered pursuant to ~~purchase~~ the terms of those plans) (the ~~“Offer~~ "MINIMUM CONDITION"), and to ~~Purchase”) that contains~~ the ~~terms set forth in this Agreement and the~~ other conditions set forth herein and in Annex ~~III~~ I hereto. ~~Parent~~ Notwithstanding the foregoing, Merger Sub expressly reserves the right to waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ and to make any ~~other changes~~ change in the terms or conditions of the Offer; provided, however, that without the prior written consent of the Company, Merger Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease~~ waive the Minimum Condition or make any change in the Offer ~~Price or change~~ that changes the form of ~~consideration in which any component~~ the Offer or of the consideration or decreases the price per share, except as provided in Section 2.7 hereof, or that imposes conditions to the Offer ~~Price is payable, decrease the number of Shares sought~~ in ~~the Offer, waive or change the Minimum Condition (as defined~~ addition to those set forth herein and in Annex ~~III~~ I hereto), ~~modify~~ or ~~amend any of the conditions set forth in Annex III hereto or~~ that is otherwise ~~modify or amend any other term or condition of the Offer, in each case in any manner~~ materially adverse to the holders of Shares (other than Parent and its affiliates). The Offer shall expire at midnight on the ~~Company Common Stock, impose~~ expiration date. The initial scheduled expiration date of the Offer shall be the date that is 20 business days following the date of commencement of the Offer. If on any scheduled expiration date of the Offer all conditions to the Offer shall not have been satisfied or waived, Merger Sub shall extend the Offer from time to time until such conditions have been satisfied or waived; provided that ~~are not set forth on Annex III hereto, or~~ Merger Sub shall have no obligation to extend the Offer beyond a the date ~~that is twenty-one (21) business~~ 60 days after commencement of the Offer, nor shall it have the right to extend the Offer beyond the date 60 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~~ except pursuant to ~~be authorized by~~ the ~~Company Board of Directors or a duly authorized committee thereof~~next sentence). ~~Notwithstanding~~ If on any scheduled expiration date of the ~~foregoing, but subject~~ Offer all conditions to the ~~parties’ respective rights~~ Offer (including the Minimum Condition) shall have been satisfied but the sum of (i) the number of Shares tendered (and not withdrawn) pursuant to ~~terminate this Agreement in accordance with Section 8.1~~the Offer plus (ii) the number of Shares held by Parent, Merger Sub ~~shall~~or any other affiliate of Parent that have not been tendered pursuant to the Offer, including Shares issuable to any of them upon ~~the written request~~ conversion of Series A Preferred Shares and convertible debt of the Company ~~at least one business day before~~ held by any of them, represent less than 90% of the ~~then~~outstanding Shares on a fully-~~scheduled expiration date~~diluted basis (except that unexercised Options shall not be treated as outstanding for this purpose), ~~and may,~~ Merger Sub shall also have the right to extend the Offer from time to time without the consent of the ~~Company~~Company (for not more than an aggregate of 10 business days) in order to permit Merger Sub to solicit the tender of additional Shares pursuant to the Offer. Notwithstanding anything to the contrary set forth in this Agreement or in Annex I, ~~(i) extend~~ if the Offer ~~beyond~~ is extended in accordance with the ~~initial expiration date if~~foregoing following satisfaction of the Minimum Condition, at the Minimum Condition shall be deemed to remain satisfied regardless of any ~~scheduled (or extended)~~ withdrawal of previously tendered shares during the extension period. Subject to the foregoing and to the terms and conditions of the Offer, Merger Sub agrees to pay, as promptly as reasonably practicable after the expiration of the Offer, ~~any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived~~ for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares ~~that have been validly~~ properly tendered and not withdrawn pursuant to the Offer ~~and~~ that Merger Sub is obligated to ~~accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law~~purchase.

Appears in 1 contract

Samples: Merger Agreement (Securicor International LTD)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 8 and that none of the events ~~described~~ or conditions set forth in ~~any of paragraphs~~ clause (ac), (d), (e)(ii) or (be)(iv) of Annex ~~III~~ A hereto shall have occurred and be continuing ~~(unless~~ and shall not have been waived by Parent ~~or Sub)~~and Purchaser shall not be in breach of its representations, ~~Sub shall~~warranties and covenants set forth in Sections 1.2, 3.2, 3.22, 3.25 and ~~Parent~~ 5.3, Purchaser shall ~~cause Sub to,~~ 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 ~~promulgated~~ thereunder, the “Exchange Act”)) the Offer ~~within ten (10) business days following the date hereof~~as promptly as practicable after March 28, 2010 but not later than April 5, 2010. The ~~obligations~~ obligation of ~~Sub~~ Purchaser to accept for payment Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for ~~any Shares validly~~ each such tendered and not subsequently withdrawn ~~prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ Share shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase A hereto (the “Tender Offer ~~to Purchase~~Conditions”~~) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto~~). ~~Parent~~ Purchaser expressly reserves the right to waive any of such ~~conditions~~Tender Offer Condition, to increase the ~~Offer Price~~ Per Share Amount payable in the Offer, and to make any other changes in to the terms and conditions of the Offer; provided, however, that ~~Sub shall not, and Parent shall cause Sub not to, decrease~~ without the ~~Offer Price or change the form of consideration in which any component~~ prior written consent of the ~~Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change~~ Company: (i) the Minimum Condition (as defined in Annex ~~III hereto), modify or amend any of~~ A) may not be waived; (ii) the conditions set forth in clause (b) (to the extent any such matter could result in a Restraint), clause (e)(i)(B), and clause (e)(ii) (insofar as it relates to clause (e)(i)(B)) in Annex ~~III hereto~~ A may not be waived if any such waiver would be reasonably likely to result in personal liability to any director, officer, or ~~otherwise modify or amend~~ employee of any ~~other term or condition~~ party hereto; and (iii) no change may be made that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the Per Share Amount payable in ~~each case~~ the Offer, (C) reduces the maximum number of Shares to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex A hereto, (E) amends, modifies or supplements any of the terms and conditions of the Offer 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~~Shares, or ~~extend the Offer beyond a date that is twenty-one~~ (21F) ~~business days after commencement of the Offer or the last extension (~~except as ~~permitted~~ provided in ~~accordance with this~~ Section ~~1.1~~1.1(c), ~~if any,~~ extend or otherwise change the expiration date of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, ~~Parent and Sub~~ Purchaser shall 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 TO ~~with respect to the Offer~~ (together with all ~~amendments,~~ amendments and supplements ~~and exhibits~~ thereto, the “Schedule TO”)) with respect to the Offer that will comply in all material respects with the provisions of all applicable Legal Requirements. The Schedule TO shall ~~include, as exhibits~~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 (the Schedule TO, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the “Offer Documents”). ~~Subject to Section 5.2~~Each of Parent, Purchaser and the Company ~~hereby consents~~ agrees to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to correct promptly ~~correct~~ any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ Purchaser further 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 ~~Law~~Legal Requirements. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). 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 give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Purchaser shall provide the Company (in writing, if written), and consult with the Company regarding, any comments (written or oral) that Parent or Purchaser or their counsel may receive from the SEC or the SEC Staff with respect to the Offer Documents promptly after receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment on ~~the Schedule TO and~~ any ~~amendment thereto~~ proposed responses before ~~it is~~ they are filed with the ~~SEC,~~ SEC and to participate in the response of Parent and ~~Sub shall give due consideration~~ Purchaser to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (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 after the date that the Offer is commenced (the “Expiration Date”), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, this Section 1.1(c) or as may be required by applicable Legal Requirements, 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 is terminated in accordance with its terms, Purchaser shall extend the Offer from time to time if (i) any Tender Offer Condition is not satisfied (or, in accordance with Section 1.1(a) above, waived by Parent or Purchaser) on or before the Expiration Date; or (ii) if any applicable Legal Requirement, rule, regulation, interpretation or position of the SEC or the staff of the SEC (the “SEC Staff”) thereof applicable to the Offer requires such extension. Purchaser shall ~~provide~~ extend the Offer pursuant to the immediately preceding sentence for consecutive periods of up to five (5) business days each (or for such period as the parties hereto may agree or as may be required by any applicable Legal Requirement, rule, regulation, interpretation or position); provided, however, that Purchaser shall not be required to extend the Offer beyond the Outside Date. If this Agreement is terminated prior to the Acceptance Date, Purchaser shall promptly (and in any event within twenty-four (24) hours) irrevocably and unconditionally terminate the Offer (and return, or cause to be ~~provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable~~returned, all ~~funds necessary~~ tendered Shares to ~~promptly pay~~ the registered holders thereof). The Offer may not be terminated prior to its Expiration Date (as such Expiration Date may be extended and re-extended in ~~full in cash the aggregate Offer Price for those Shares that~~ accordance with this Section 1.1(c)), unless this Agreement shall 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~~terminated in accordance with its terms.

Appears in 1 contract

Samples: Merger Agreement (Intersil Corp/De)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Section ~~8.1~~ 8 and none of the events ~~described~~ set forth in ~~any of~~ paragraphs (a) or through (bf) of ~~Annex III hereto~~ Exhibit B shall have occurred and be ~~continuing~~ existing, as promptly as reasonably practicable after the date of this Agreement (~~unless waived by Parent or Sub~~and in any event within five Business Days of the date hereof), Merger Sub shall, and Parent shall cause Merger Sub to, commence (the Offer within the meaning of Rule ~~14d-2 under~~ 14d-2(a) of the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act~~”)) the Offer within ten (10) business days following the date hereof~~. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for ~~payment~~ payment, purchase and to pay for ~~any~~ all Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in ~~Annex III hereto. Subject to the prior satisfaction or waiver by Parent or~~ Exhibit B. Merger Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to ~~waive any of such conditions, to~~ increase the Offer Price ~~and~~ or to make any other changes in the terms and conditions of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the ~~Company~~ Company’s Board of ~~Directors~~ Directors), neither Parent nor Merger Sub shall make any change in the terms and conditions of the Offer that: (i) reduces the number of Shares subject to the Offer, (ii) reduces the Offer Price to be paid pursuant to the Offer, (iii) changes the Minimum Tender Condition (as defined in Exhibit B), adds to the conditions set forth in Exhibit B or ~~a duly authorized committee thereof~~modifies any condition set forth in Exhibit B in any manner adverse to the holders of Shares, (iv) changes the form of consideration payable in the Offer, (v) extends the Offer in any manner other than pursuant to and in accordance with the terms of Section 1.1(b) hereof, or (vi) otherwise amends the Offer in any manner adverse to the holders of Shares. The conditions to the Offer set forth in Exhibit B are for the sole benefit of Parent and Merger Sub and may be waived by Parent or Merger Sub, in whole or in part, at any time or from time to time, in their sole discretion, other than the Minimum Tender Condition, which may be waived by Parent and Merger Sub only with the prior written consent of the Company. (b) Unless extended in accordance with this Section 1.1(b), the Offer shall expire at midnight, New York time, on the date that is 20 business days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the Exchange Act) after the date the Offer is commenced within the meaning of Rule 14d-2(a) under the Exchange Act (the “Initial Expiration Date”, and, as it may be extended in accordance with this Section 1.1(b), the “Expiration Date”). Notwithstanding the foregoing, but subject to the parties’ ~~respective~~ rights to terminate this Agreement ~~in accordance with~~ pursuant to 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~~8, (i) ~~extend~~ if at the ~~Offer beyond the initial expiration date if, at~~ Initial Expiration Date or any ~~scheduled (or extended) expiration of the Offer,~~ subsequent Expiration Date any of the conditions set forth ~~in Annex III hereto~~ on Exhibit B are not satisfied and have not been waived, Merger Sub (~~other than the Minimum Condition~~A) shall ~~not be~~ extend the Offer for one period of 10 Business Days, and (B) may, in its sole discretion, extend the offer for one or more additional periods of 10 Business Days, in each case until such time as such conditions are satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, and/or (ii) ~~from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii)~~ Merger Sub shall extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the Offer~~. In addition~~ , provided, that in no event shall Merger Sub be either required or permitted to extend the Offer beyond November 13, 2006 (the “Outside Date”) or to waive any condition to the ~~foregoing~~ Offer. (c) If, on the Expiration Date, the Minimum Tender Condition has been satisfied and ~~excluded from~~ all of the other conditions set forth in Exhibit B have been irrevocably satisfied or waived, on the terms and subject to the conditions of the Offer and this Agreement, as soon as practicable after the Expiration Date (and in any event within three Business Days), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and purchase all Shares validly tendered and not withdrawn pursuant to the Offer, and to pay the Offer Price payable in respect of each such ~~limitations~~Share 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 (the date of such acceptance for payment being the “Acceptance Date”). (d) If, on the Expiration Date, the Minimum Tender Condition has been satisfied and all of the other conditions set forth in Exhibit B have been irrevocably satisfied or waived but the number of Shares validly tendered and not withdrawn, when added together with all other Shares owned by Parent and its Subsidiaries, is less than 90% of the outstanding Shares, then Merger Sub ~~also may provide~~ may, but shall not be obligated to, provide, and the Offer Documents shall reserve the right to so provide, a “subsequent offering period” for the Offer in accordance with Rule 14d-11 under the Exchange Act of not less than three nor more than 20 Business Days immediately following its acceptance for payment and purchase of and payment for (as provided in Section 1.1(c)) Shares tendered in the Offer in the initial offer period. During such subsequent offering period, Merger Sub shall (and Parent shall cause Merger Sub to) immediately accept for payment all Shares as they are validly tendered pursuant to the Offer and to purchase and pay for such Shares as soon as practicable after they have been so tendered, in accordance with Rule 14d-11 under the Exchange Act. (be) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, ~~pursuant~~ and cause to ~~Regulation M-A under~~ be disseminated to all of the ~~Exchange Act (“Regulation M-A”)~~Company’s stockholders, a Tender Offer Statement on Schedule TO with respect to the ~~Offer~~ Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal, a joint press release in accordance with Section 6.6 and a summary advertisement, if any, and all other ancillary offer documents (~~together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The~~ such Schedule TO ~~shall include, as exhibits,~~ and the documents contained or incorporated by reference therein pursuant to which the Offer ~~to Purchase and a form of letter of transmittal and summary advertisement (collectively~~will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “Offer Documents”). ~~Subject~~ The Company shall promptly furnish to ~~Section 5.2,~~ Parent and Merger Sub in writing all information concerning the Company ~~hereby consents to the~~ that may be required by applicable securities laws or reasonably requested by Parent and Merger Sub for inclusion in the Offer Documents so as to enable Parent and Merger Sub to comply with their obligations under Section 1.1(a). Each of ~~the recommendation~~ Parent, Merger Sub and the ~~approval of the~~ Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to shall promptly correct any information provided by it or on its behalf for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and each of Parent and Merger Sub ~~further agree 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 the Offer Documents as so amended or supplemented to be disseminated to ~~holders of Shares, in each case as and to~~ the ~~extent required by applicable Law~~Company’s stockholders. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO~~ Offer Documents and any ~~amendment~~ amendments or supplements thereto ~~before it is filed~~ prior to their filing with the ~~SEC, and~~ SEC or dissemination to the Company’s stockholders. Parent and Merger Sub shall ~~give due consideration~~ promptly provide to ~~all reasonable additions, deletions or modifications thereto suggested by~~ the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company with~~ counsel in writing any comments, whether written or oral, that Parent, Merger Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents or any amendments or supplements thereto promptly ~~upon~~ after the receipt of such comments, ~~and any written or oral responses thereto, and~~ shall consult with the Company ~~shall have the right to consult with Parent, Sub~~ and ~~their~~ its counsel prior to responding to any such ~~comments, either in~~ comments and shall provide the Company and its counsel with any 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~~promptly after giving same. In conducting the Offer, ~~and~~ Parent and Merger Sub shall ~~give due consideration to~~ comply in all ~~reasonable views and comments~~ material respects with the provisions of the ~~Company~~ Exchange Act and ~~its legal counsel with respect thereto~~any other applicable Legal Requirements. (cf) Parent shall provide or cause to be provided to Merger Sub ~~promptly following~~ on a timely basis 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Sub becomes obligated to purchase pursuant to the Offer or the Merger, and ~~that~~ shall be liable on a direct and primary basis for the performance by Merger Sub ~~is obligated~~ of its obligations under this Agreement. Prior to ~~accept~~ commencement of the Offer, Merger Sub shall designate, or shall cause to be designated, a bank or trust company reasonably acceptable to the Company to act as depositary and paying agent for the payment of the Offer Price for Shares validly tendered pursuant to the Offer (the “Depositary”), and, from time to time after the date the Offer is commenced, Merger Sub shall provide (or Parent shall provide on behalf of Merger Sub) to the Depositary funds in amounts and ~~permitted~~ at the times necessary for the payment of the Offer Price for Shares validly tendered pursuant to ~~accept~~ the Offer, it being understood that any and all interest or income earned on funds made available to the Depositary pursuant to this Agreement shall be turned over to Parent. (g) If this Agreement has been terminated pursuant to Section 8.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares for ~~payment under applicable Law~~payment.

Appears in 1 contract

Samples: Merger Agreement (Summa Industries/)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 7.1, as promptly as practicable (and ~~none of the events described~~ in any ~~of paragraphs~~ event within ten (a10) ~~or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~Business Days from the date hereof), ~~Sub shall,~~ Purchaser shall (and Parent shall cause ~~Sub~~ Purchaser to, ) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as ~~amended (together with~~ amended, and the rules and regulations promulgated ~~thereunder,~~ thereunder (the “Exchange Act”)) the Offer ~~within ten (10) business days following~~ to purchase for cash all Shares at the ~~date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior~~ Offer Price, subject to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction satisfaction, or waiver by Parent or ~~Sub~~ Purchaser, of the other conditions and requirements set forth in Annex ~~III hereto~~I. (b) Subject to Section 1.1(a), ~~Sub shall,~~ Purchaser shall (and Parent shall cause ~~Sub~~ Purchaser to, ) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer~~Offer as promptly as practicable. 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 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 and the other conditions and requirements set forth in Annex ~~III hereto.~~ I. Parent and Purchaser expressly ~~reserves~~ reserve the right ~~to waive any of such conditions,~~ to increase the Offer Price ~~and~~ or to make any other changes in the terms and conditions of the ~~Offer~~offer; provided, however, that ~~Sub~~ unless otherwise provided by this Agreement or as previously approved by the Company in writing, Parent and Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ (i) decrease the Offer ~~Price or~~ Price, (ii) change the form of consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, ~~waive~~ (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) impose conditions to the Offer that are different from, or ~~change the Minimum Condition (as defined~~ in ~~Annex III hereto)~~addition to, ~~modify or amend any of~~ the conditions set forth in Annex ~~III hereto or otherwise modify or~~ I, (v) waive the Minimum Condition as defined in Annex I, (vi) amend any ~~other term or condition~~ of the ~~Offer,~~ conditions to the Offer set forth in ~~each case~~ Annex I in ~~any~~ a manner adverse to the holders of the ~~Company Common Stock, impose any conditions to~~ Shares or (vii) extend the expiration of the Offer ~~that are not set forth on Annex III hereto~~in a manner other than as required by this Agreement. (d) Unless extended pursuant to and in accordance with the terms of this Agreement, ~~or extend~~ the Offer ~~beyond a~~ shall expire at midnight (New York City time) on the date that is ~~twenty-one~~ twenty (2120) ~~business days after~~ Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer or (the ~~last extension (as permitted~~ “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to, and in accordance with this ~~Section 1.1)~~Agreement, ~~if any~~the date to which the Offer has been so extended (the Initial Expiration Date, of or such later date to which the ~~Offer~~Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, ~~whichever~~ is ~~later (~~referred to as the “Expiration Date”~~) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof~~). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (be) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 extended from time to time prior to the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.follows:

Appears in 1 contract

Samples: Merger Agreement (Datascope Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1 and none of~~ 8.1, the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub~~ Purchaser shall, and Parent shall cause ~~Sub~~ the Purchaser to, commence (within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange Act the Offer in no later than five business days after the initial public announcement of ~~1934, as amended~~ Parent's intention to commence the Offer. The Offer shall have a scheduled expiration date 20 business days following commencement of the Offer (~~together with~~ the ~~rules and regulations promulgated thereunder~~"Initial Expiration Date"). Notwithstanding any contrary provision of this Agreement, the ~~“Exchange Act”)~~Purchaser (i) if so requested by the Company at the direction of the Special Committee, will extend the Offer ~~within ten~~ for up to 20 business days in the event upon the Initial Expiration Date, the Purchaser shall not have accepted for payment shares of Common Stock pursuant to the Offer as a result of one or more of the conditions set forth in Annex I hereto not having been satisfied or waived by the Purchaser, (10ii) at its discretion may determine from time to time to extend the Offer for no more than an aggregate of 20 business days following the later of the Initial Expiration Date and the first expiration date ~~hereof~~thereafter on which all of the conditions set forth in Annex I shall have been satisfied or waived, if applicable; provided, however, that in the event that the Purchaser extends the Offer pursuant to this clause (ii) all of the conditions to the Offer shall be deemed to have been irrevocably satisfied for all purposes of the Offer and shall not be asserted by Parent as a basis for not consummating the Offer and (iii) may, from time to time at its discretion, extend the Offer in increments of up to ten business days each, if one or more of the conditions set forth in Annex I shall not have been satisfied or waived. The ~~obligations of Sub to~~ Purchaser shall not accept for payment ~~and~~ any shares of Common Stock tendered pursuant to ~~pay for any Shares~~ the Offer unless there shall have been validly tendered and not withdrawn prior to the expiration of the Offer such number of shares of Common Stock which, together with the Parent Shares, satisfy the Minimum Condition (as ~~it may be extended~~ defined in ~~accordance with requirements~~ Annex I). Under no circumstances shall Parent or Purchaser waive the Minimum Condition. In addition to the Minimum Condition, the obligation of ~~this Section 1.1(a))~~ the Purchaser to accept for payment and pay for shares of Common Stock tendered pursuant to the Offer shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction ~~or waiver by Parent or Sub~~ of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex ~~III~~ I hereto. Parent expressly reserves the right to ~~waive any of such conditions, to~~ increase the Per Share Amount under such circumstances, if any, as Parent, in its sole discretion, may deem appropriate. Without the prior consent of the Special Committee, the Purchaser will not (i) decrease the Per Share Amount; (ii) change the number of shares of Common Stock to be purchased in the Offer; (iii) change the form of the consideration payable in the Offer; (iv) add to the conditions to the Offer ~~Price and to~~ set forth in Annex I hereto; or (v) make any other ~~changes~~ change in the terms or conditions of the Offer which is adverse to the holders of shares of Common Stock. The Per Share Amount shall, subject to any applicable withholding of taxes, be net to the seller in cash, upon the terms and subject to the conditions of the Offer. Following the satisfaction or waiver of the conditions to the Offer, Parent shall cause the Purchaser to accept for payment and pay for, in accordance with the terms of the Offer~~; provided~~, ~~however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form~~ all shares of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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~~ Stock validly tendered pursuant to the Offer ~~that are~~ and not ~~set forth on Annex III hereto~~withdrawn, or extend the Offer beyond a date that is 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 pursuant to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable ~~to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~law. (b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent ~~and Sub~~ shall file with the Securities and Exchange Commission (the "SEC~~, pursuant to Regulation M-A under the Exchange Act~~ ") (~~“Regulation M-A”),~~ i) a Tender Offer Statement on Schedule TO 14D-1, including the exhibits thereto (together with all amendments and supplements thereto, the "Schedule 14D-1"), including the exhibits thereto with respect to the Offer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, including the exhibits thereto (together with all ~~amendments,~~ amendments and supplements ~~and exhibits~~ thereto, the “"Schedule ~~TO”~~13E-3") with respect to the Offer and the other transactions contemplated hereby (the "Transactions"). The Schedule TO 14D-1 and the Schedule 13E-3 shall ~~include~~contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the letter of transmittal and any summary advertisement (the Schedule 14D-1, ~~as exhibits~~the Schedule 13E-3, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the “"Offer Documents”"). ~~Subject to Section 5.2~~Parent, the Purchaser and the Company ~~hereby consents~~ agree to ~~the inclusion~~ correct promptly any information provided by any of them for use in the Offer Documents ~~of the recommendation~~ which shall have become materially incorrect or misleading, and Parent and the ~~approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub~~ Purchaser further agree to take all ~~commercially reasonable~~ 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, subject~~ and the other Offer Documents as so corrected to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of ~~Shares~~shares of Common Stock, in each case as and to the extent required by applicable ~~Law~~law. ~~Parent and Sub, on the one hand, and the~~ The Company, on the ~~other hand, agree to promptly correct any information provided by it for use in the Offer Documents if~~ Special Committee and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company their respective counsel shall be given a the reasonable opportunity to review and comment on the ~~Schedule TO~~ Offer Documents and any ~~amendment~~ amendments thereto ~~before it is filed~~ prior to the filing thereof with the SEC~~, and~~ . Parent and ~~Sub~~ the Purchaser shall ~~give due consideration to all reasonable additions~~provide promptly the Company, ~~deletions~~ the Special Committee and their respective counsel with a copy of any written comments or ~~modifications thereto suggested by~~ telephonic notification of any oral comments Parent or the ~~Company and 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~~ Purchaser may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt ~~of such comments~~thereof. Parent and the Purchaser shall provide the Company and the Special Committee, and ~~any written or oral responses thereto~~their respective counsel, ~~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~~ participate in all ~~reasonable views and comments of~~ communications with the ~~Company~~ SEC 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~~ staff, including any ~~subsequent extension thereof~~meetings and telephone conferences, ~~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~~ relating 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~~Transactions or this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Pinault Printemps Redoute Sa Et Al)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and ~~none~~ no event shall have occurred or circumstance shall exist which constitutes a material failure to satisfy any of the ~~events described~~ conditions set forth in ~~any of paragraphs (a) or (b) of~~ Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934A hereto, as ~~amended~~ promptly as practicable, but in no event later than the fifth (~~together with the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10~~5th) business ~~days~~ day following the ~~date hereof~~public announcement of the terms of this Agreement, Acquisition shall commence the Offer. The ~~obligations~~ obligation of ~~Sub~~ Acquisition to accept for payment and to pay for ~~any~~ Shares tendered pursuant to the Offer shall be subject to the condition that a number of Shares representing not less than a majority of the outstanding Shares shall have been validly tendered and not withdrawn prior to the ~~expiration~~ Expiration Date (as defined below) of the Offer (~~as it may be extended in accordance with requirements~~ the "MINIMUM CONDITION"), and further there shall have been no material failure to satisfy any of ~~this Section 1.1(a)) shall be subject only to~~ the conditions set forth in ~~Annex III~~ ANNEX A hereto. ~~Subject~~ The Per Share Amount payable in the Offer shall be paid net to the ~~prior satisfaction or waiver by Parent or Sub of conditions set forth~~ tendering stockholders in ~~Annex III hereto~~cash, ~~Sub shall, and Parent shall cause Sub to, consummate~~ upon the ~~Offer in accordance with its~~ terms and ~~accept for payment and pay for all Shares tendered and not withdrawn promptly following~~ subject to the ~~acceptance~~ conditions of ~~Shares for payment pursuant to~~ the Offer. ~~The Offer~~ There shall not be ~~made~~ deductible from the Per Share Amount any expenses or costs of Ultimate Parent, Parent or Acquisition associated with, arising out of or in connection with the transaction contemplated 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~~or otherwise. ~~Parent~~ Acquisition expressly reserves the right in its sole discretion to ~~waive~~ waive, in whole or in part, at any ~~of such conditions~~time or from time to time, any condition to the Offer (other than the Minimum Condition), to increase the price per Share payable in the Offer ~~Price and~~ or to make any other changes in the terms and conditions of the Offer; ~~provided~~provided that, ~~however~~unless previously approved by the Company in writing, no change may be made that ~~Sub shall not~~decreases the Per Share Amount, ~~and Parent shall cause Sub not to~~waives or changes the Minimum Condition, ~~decrease the Offer Price or change~~ changes the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, ~~decrease~~ reduces the number of Shares ~~sought~~ to be purchased in the Offer, ~~waive~~ imposes conditions to the Offer in addition to those set forth in Annex A hereto or ~~change~~ extends the ~~Minimum Condition~~ Offer beyond the Outside Date (as defined in ~~Annex III hereto~~Section 8.1(c)). The Offer shall be scheduled to expire as of the end of the twentieth (20th) day following the commencement of the Offer, ~~modify or amend~~ subject to any of extensions thereof permitted in this Agreement (the "EXPIRATION DATE"). If the Minimum Condition is satisfied and the conditions set forth in Annex ~~III~~ A hereto are satisfied in all material respects or ~~otherwise modify or amend any other term or condition~~ waived by Acquisition as of the ~~Offer~~Expiration Date, ~~in each case in any manner adverse to the holders of the Company Common Stock, impose any conditions~~ then Acquisition shall promptly accept and pay for all Shares validly tendered and not withdrawn pursuant to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is 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~~"TENDER CLOSING"); provided, ~~in each case without~~ that if the ~~prior written consent of~~ Minimum Condition is satisfied and the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the other conditions set forth in Annex ~~III~~ A hereto ~~(other than the Minimum Condition) shall not be~~ are satisfied in all material respects or waived ~~for up to two periods~~ by Acquisition as of the Expiration Date but fewer than 90% of the outstanding Shares have been validly tendered and not withdrawn at such time, then Acquisition may, on more than ~~ten (10) business days per extension, (ii) from time to time~~one occasion, extend the ~~Offer if at the scheduled or extended~~ Expiration Date ~~the Minimum Condition is not satisfied,~~ for ~~up to two periods~~ a period of ten (10) business days ~~per extension~~ but not beyond the Outside Date. Unless this Agreement has been terminated pursuant to Article VIII, if the Minimum Condition has not been satisfied or the conditions set forth in Annex A hereto have not been satisfied in all material respects or waived by Acquisition as of the Expiration Date (~~iii)~~ including any extensions thereof), then Acquisition shall extend the Offer for ~~any~~ an additional period of not less than five (5) business days and not more than twenty (20) business days; provided, that Acquisition shall not be required ~~by any rule, regulation or interpretation of~~ to extend the ~~United States Securities and Exchange Commission (“SEC”), or~~ Offer beyond the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange ActOutside Date. (b) On As soon as practicable on the date of commencement of the Offer, Ultimate Parent, Parent and ~~Sub~~ Acquisition shall file with the ~~SEC, pursuant to Regulation M-A under~~ Securities and Exchange Commission (the ~~Exchange Act (“Regulation M-A”),~~ -2- 6 "COMMISSION") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer which will contain the offer to purchase and form of the related letter of transmittal (together with ~~all amendments,~~ any supplements ~~and exhibits~~ or amendments thereto, the ~~“Schedule TO”~~"OFFER DOCUMENTS"). ~~The Schedule TO shall include~~Ultimate Parent, ~~as exhibits~~Parent, ~~the Offer to Purchase~~ Acquisition and ~~a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2,~~ the Company ~~hereby consents~~ each agrees promptly to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it any such information shall have become false or misleading in any material respect ~~or as otherwise required by Law.~~ and Ultimate Parent, Parent and ~~Sub~~ Acquisition each further ~~agree~~ agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the ~~SEC~~ Commission and to be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to their filing with the ~~SEC,~~ Commission and ~~Parent and Sub~~ shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company~~ be provided with any ~~comments, whether written or oral, that~~ comments Ultimate Parent, ~~Sub or~~ Parent, Acquisition and their counsel may receive from ~~time to time prior to~~ the ~~expiration or termination of the Offer, from the SEC~~ Commission or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Techforce Corp)

The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate this Agreement ~~shall not have been terminated~~ pursuant to ‎Article 8, as promptly as practicable after the date hereof, but in ~~accordance with Section 8.1~~ no event later than the later of (A) fifteen Business Days following the date of this Agreement and ~~none~~ (B) five Business Days following the date of satisfaction or waiver by Buyer and the Company of the ~~events described in any of paragraphs (a) or (b)~~ condition set forth under Part 1 of Annex ~~III~~ I hereto ~~have occurred and be continuing~~ (~~unless waived by Parent or Sub~~the “Pre-Launch Condition”), ~~Sub shall, and Parent~~ Buyer shall ~~cause Sub to,~~ commence (within the meaning of Rule 14d-2 under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)~~0000 Xxx) the ~~Offer within ten~~ Offer. The Pre-Launch Condition is for the benefit of both Buyer and the Company and may be waived only by the Company and Buyer jointly (10either in whole or in part) ~~business days following~~ by written agreement. No party may invoke the ~~date hereof~~Pre-Launch Condition if the non-satisfaction of such condition is caused by a breach of that party of any of its obligations under this Agreement. The obligations of ~~Sub~~ Buyer to, and of Parent to cause Buyer to, accept for ~~payment~~ payment, and to pay ~~for~~ for, any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Part 2 of Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase I hereto (the “Offer Conditions”). The date on which Buyer commences the Offer is referred to ~~Purchase~~as the “Offer Commencement Date”. (b) ~~that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent~~ Buyer expressly reserves the right ~~to waive~~ at any time to, its sole discretion, waive, in whole or in part, any of ~~such conditions, to increase~~ the Offer ~~Price~~ Conditions and to make any ~~other changes~~ change in the terms of or conditions to the Offer; ~~provided~~provided that, ~~however~~without the prior written consent of the Company, ~~that Sub~~ Buyer shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, : (i) waive or change the Minimum Condition (as defined in Annex ~~III hereto~~I); (ii) decrease the Offer Consideration; (iii) change the form of consideration to be paid in the Offer; (iv) decrease the number of Shares sought in the Offer; (v) extend or otherwise change the Expiration Time except as otherwise provided in this Agreement; or (vi) impose additional Offer Conditions or otherwise amend, modify or ~~amend~~ supplement any of the ~~conditions set forth in Annex III hereto~~ Offer Conditions or ~~otherwise modify or amend any other term or condition~~ terms of the ~~Offer,~~ Offer in ~~each case in any~~ a manner adverse to the holders of the ~~Company Common Stock~~Shares. (c) Unless extended as provided in this Agreement, ~~impose any conditions to~~ the Offer ~~that are not set forth~~ shall expire at 12:00 midnight (New York City time) on ~~Annex III hereto, or extend~~ the ~~Offer beyond a~~ date that is ~~twenty-one~~ twenty Business Days (21calculated as set forth in Rule 14d-1(g)(3) ~~business days~~ under the 0000 Xxx) after ~~commencement~~ the Offer Commencement Date (such time, the “Initial Expiration Time” or such time and any subsequent time to which the expiration of the Offer ~~or the last extension (as permitted~~ is extended in accordance with the terms of this ~~Section 1.1~~Agreement, the “Expiration Time”). Subject to the provisions of Article 8, if ~~any,~~ any of the Offer Conditions is not satisfied or waived at the Initial Expiration Time or at any other Expiration Time of the Offer, ~~whichever is later~~ Buyer shall extend the Offer (the ~~“Expiration Date”) except as set forth below, in each case without the prior written consent~~ length of ~~the Company (~~such ~~consent~~ extension period to be ~~authorized~~ determined by ~~the Company Board of Directors~~ Parent or ~~a duly authorized committee thereof). Notwithstanding the foregoing~~Buyer, ~~but~~ subject to ~~the parties’ respective rights~~ clauses (i)-(iii) below) from time 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, time until such Offer Condition or Offer Conditions are satisfied or waived; provided that (i) Buyer shall not be required to extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionEnd Date, (ii) ~~from time~~ no such individual extension of the Offer shall be for a period of more than ten Business Days, and (iii) Buyer shall not be required to ~~time,~~ extend the Offer if at ~~the scheduled~~ any time that Parent or ~~extended Expiration Date the Minimum Condition~~ Buyer is ~~not satisfied, for up~~ permitted to ~~two periods of ten (10) business days per extension or (iii)~~ terminate this Agreement. Buyer shall extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“~~SEC”), the staff thereof or the ~~staff thereof,~~ NASDAQ applicable to the Offer or as may be required by any other Governmental Authority; provided, that Buyer shall not be required to extend the Offer to a date later than the End Date. Following expiration of the Offer~~. In addition to~~ , Buyer shall (and the ~~foregoing and excluded from any such limitations, Sub also may~~ Offer Documents shall so indicate) provide a “subsequent offering ~~period”~~ period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act of not less than five nor more than twenty Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the ~~Exchange~~ 1934 Act). The Offer may not be terminated prior to the Expiration Time (as the same may be extended pursuant to this ‎Section 2.01) unless this Agreement is validly terminated pursuant to ‎Section 8.01. If this Agreement is validly terminated pursuant to ‎Section 8.01, Buyer shall promptly (and in any event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Buyer prior to the acceptance for payment and payment for Shares tendered in the Offer, Buyer shall promptly return, and shall cause any depositary acting on behalf of Buyer to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof. Nothing in this ‎Section 2.01(c) shall affect any termination rights under ‎Article 8. (bd) On Subject to the ~~date~~ terms and conditions set forth in this Agreement and to the satisfaction or waiver of ~~commencement~~ the Offer Conditions, Buyer shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment and paid for under the Offer, the “Closing Date” and the acceptance for payment and payment for Shares on the Closing Date, the “Closing”). The Cash 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. (e) As soon as practicable on the Offer Commencement Date, Parent and ~~Sub~~ Buyer shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The Schedule TO~~ ) that shall ~~include~~include the summary term sheet required thereby and, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments ~~and~~ or supplements thereto, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares, in each case as and~~ Shares to the extent required by applicable United States federal securities laws and any other Applicable Law. The Company shall promptly furnish to Parent and ~~Sub~~Buyer all information concerning the Company required by the 1934 Act to be set forth in the Offer Documents. Each of Parent, ~~on the one hand,~~ Buyer and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly~~ correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that it such information shall have become (or shall have become known to be) false or misleading in any material ~~respect or as otherwise required by Law~~respect. Parent and ~~Sub further agree to take all steps necessary~~ Buyer shall use their reasonable best efforts to 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 ~~as and~~ to the extent required by applicable United States federal securities laws and any other Applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any ~~amendment thereto before it~~ such document is filed with the SEC, and Parent and ~~Sub~~ Buyer shall give ~~due~~ reasonable and good faith consideration to ~~all reasonable additions, deletions or modifications thereto suggested~~ any comments made by the Company and its ~~legal~~ counsel. ~~In addition,~~ Parent and ~~Sub agree to~~ Buyer shall provide the Company and its counsel with (i) any ~~comments~~comments or other communications, whether written or oral, that Parent, ~~Sub~~ Buyer or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of ~~such comments,~~ those comments or other communications 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 (ii) a reasonable opportunity to ~~review any responses to such comments or communications, and~~ participate in the response of Parent and ~~Sub~~ Buyer to those comments and to provide comments on that response (to which reasonable and good faith consideration shall ~~give due consideration to all reasonable views~~ be given), including by participating with Parent and ~~comments of~~ Buyer or their counsel in any discussions or meetings with the ~~Company and its legal counsel with respect thereto. (c) Parent shall provide~~ SEC 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 other Governmental Authorities to the ~~Offer and that Sub~~ extent such participation is ~~obligated to accept for payment pursuant to~~ permitted by the ~~Offer and permitted to accept for payment under applicable Law~~SEC or other Governmental Authorities.

Appears in 1 contract

Samples: Purchase Agreement (Prosensa Holding N.V.)

Appears in 1 contract

Samples: Merger Agreement (AdvancePierre Foods Holdings, Inc.)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article VII and none of the events ~~described~~ specified in ~~any of paragraphs~~ clause (~~a) or (b~~iii) of ----------- ------------ Annex ~~III hereto~~ I shall have occurred and then be ~~continuing (unless waived by Parent or Sub)~~continuing, ~~Sub shall~~as promptly as practical ------- after the date hereof, ~~and~~ but in no event later than the sixth business day after the date hereof, Parent shall cause ~~Sub to,~~ Purchaser to commence (within the meaning 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 ~~within ten (10) business days following~~ at the ~~date hereof~~Offer Price. The ~~obligations~~ obligation of ~~Sub~~ Purchaser to consummate the Offer, to accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the satisfaction of the conditions set forth in Annex ~~III hereto~~I. The initial expiration date of the Offer ------- shall be the twentieth business day following commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer. ~~Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and~~ Parent shall cause ~~Sub~~ Purchaser to, ~~consummate~~ and Purchaser shall, subject to the ~~Offer~~ conditions provided in ~~accordance with its terms and~~ Annex I, accept ------- for payment and pay for all Shares validly tendered and not withdrawn ~~promptly following~~ pursuant to the ~~acceptance of Shares~~ Offer as soon as practicable after such expiration date and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Exchange Act. On or prior to the dates that the Purchaser becomes obligated to accept for payment and pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to the Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to accept for payment and pay for pursuant to the Offer. The Offer Price shall be ~~made by means~~ net to the seller in cash, without interest, subject to any applicable withholding taxes. (b) Purchaser reserves the right to (i) waive any 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~~ I (other than the ~~right~~ Minimum Condition and the condition relating to ~~waive any~~ ------- the expiration of ~~such conditions~~the waiting period under the HSR Act), to (ii) increase the ~~Offer Price~~ price per Share payable in the Offer, and to (iii) make any other changes in the terms of the Offer; provided, however, ~~that Sub shall not~~unless previously approved by the Company in writing no change may be made which (a) reduces the maximum number of Shares to be purchased pursuant to the Offer, ~~and Parent shall cause Sub not to~~(b) decreases the price per Share payable pursuant to the Offer, ~~decrease the Offer Price or change~~ (c) changes the form of consideration ~~in which any component of~~ to be paid for the ~~Offer Price is payable, decrease the number of~~ Shares ~~sought in~~ pursuant to the Offer, ~~waive or change~~ (d) imposes conditions to the ~~Minimum Condition (as defined~~ Offer in ~~Annex III hereto), modify or amend any of~~ addition to the conditions set forth in Annex ~~III hereto~~ I, (e) waives the Minimum Condition or ~~otherwise modify or amend any other term or~~ waives ------- the condition relating to the expiration of the ~~Offer,~~ waiting period under the HSR Act or (f) makes other changes in ~~each case~~ the terms and conditions of the Offer that are 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 date that is 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 Shares. Without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, ~~(i)~~ Purchaser shall not extend the expiration date of the Offer beyond the initial expiration date ~~if, at any scheduled (or extended) expiration~~ of the Offer, except (x) as required by applicable law including applicable rules and regulations of the SEC or any interpretation or position of the SEC staff, (y) 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, Purchaser may, in its sole discretion, extend the Offer for one or more periods not to exceed an aggregate of ten business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer; provided that after the initial expiration date, the Offer shall not be subject to any conditions that are at the time of such extension satisfied other than the Minimum Condition and the conditions set forth in paragraph (a) of Annex I, or (z) that if any condition to the Offer has ------- not been satisfied or waived, Purchaser shall extend the expiration date of the Offer for one or more periods, but in no event later than the Outside Date. 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 without the consent of the Company. (c) The Offer shall be made by means of an offer to purchase (the "Offer ----- to Purchase") subject only to the conditions set forth in Annex ~~III hereto (other than~~ I. As soon as ----------- ------- reasonably practicable on the ~~Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend~~ date the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition~~ is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offercommenced, Parent and ~~Sub~~ Purchaser shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the ~~“Offer Documents”). Subject to Section 5.2, the Company hereby consents~~ "Schedule TO") with respect 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~~ that (i) will comply in all material respects with the provisions of all applicable ~~provisions~~ federal securities laws and (ii) will contain (including as an exhibit) or incorporate by reference the Offer to Purchase, a form of the ~~Exchange Act~~related letter of transmittal and a summary advertisement (which documents, together with any supplements or amendments thereto, are referred to collectively herein as the "Offer Documents"). ~~Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to~~ Each of the Company~~’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub~~, on the one --------------- hand, and ~~the Company~~Parent and Purchaser, on the other hand, ~~agree~~ agrees promptly to ~~promptly~~ correct any information provided by it in writing for use in the Schedule TO or the Offer Documents if and to the extent that it the Schedule TO or the Offer Documents shall be, or have ~~become~~ become, false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ Purchaser further agree to take all steps necessary 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~~Shares and any other holder of securities issued by the Company (if any), in each case ~~as and~~ to the extent required by applicable ~~Law~~federal securities laws. ~~The~~ Parent and Purchaser shall provide the Company ~~shall be given~~ and its counsel with a reasonable opportunity to review and comment on the Schedule TO and any ~~amendment thereto~~ Offer Documents before ~~it is~~ they are filed with the SEC~~, and~~ . Parent and ~~Sub~~ Purchaser shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ promptly provide the Company and its ~~legal counsel. In addition~~counsel in writing with, ~~Parent~~ and ~~Sub agree to provide~~ consult with the Company ~~with~~ and its counsel regarding, any ~~comments, whether written or oral, that~~ comments Parent, ~~Sub~~ Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 1 contract

Samples: Merger Agreement (United Technologies Corp /De/)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 10.1 and ~~none of the events described in any of paragraphs (a) or (b) of Annex III hereto~~ no event shall have occurred and no circumstance shall exist which would result in a failure to satisfy any of the conditions set forth in Annex A hereto (as they may be ~~continuing (unless waived by Parent or Sub~~amended in accordance with this Agreement, the “Offer Conditions”), Merger Sub ~~shall~~shall commence, and Parent shall cause Merger Sub ~~to,~~ to commence (within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act), the ~~“Exchange Act”))~~ Offer as promptly as practicable after February 4, 2008. The Offer Price of $10.6506 per share shall be net to each seller of shares of Common Stock in the Offer ~~within ten (10~~in cash, subject to reduction for applicable amounts withheld pursuant to Section 2.1(f) ~~business days following the date hereof~~below and reduction as contemplated by Section 8.2 below. The ~~obligations~~ Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. The obligation of Merger Sub to accept for payment and to pay for any ~~Shares~~ shares of Common Stock validly tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto~~Offer Conditions. ~~Subject to the prior satisfaction or waiver by Parent or Sub~~ A share of ~~conditions set forth in Annex III hereto, Sub shall, and Parent~~ Common Stock which has been properly withdrawn shall ~~cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares~~ not be considered validly tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ pursuant to the Offer~~. The Offer shall~~ , but may be ~~made by means of an offer to purchase (the “Offer to Purchase”) that contains~~ re-tendered upon the terms ~~set forth in this Agreement~~ and subject to the conditions ~~set forth in Annex III hereto. Parent~~ of the Offer. (b) Parent, on behalf of Merger Sub, expressly reserves the ~~right~~ right, in its sole discretion, to ~~waive~~ waive, amend or modify any of ~~such conditions, to increase the Offer Price and to make any other changes in~~ the terms ~~of the Offer; provided, however, that Sub shall not,~~ and ~~Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component~~ conditions of the Offer ~~Price is payable~~(including, ~~decrease the number of Shares sought in the Offer~~without limitation, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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~~ Conditions) in a manner not ~~set forth on Annex III hereto, or extend the Offer beyond a date that is twenty-one (21) business days after commencement of the Offer or the last extension (as permitted in accordance~~ inconsistent with this ~~Section 1.1)~~Agreement, ~~if any~~provided, ~~of the Offer~~that, ~~whichever is later (the “Expiration Date”) except as set forth below, in each case~~ without the prior written consent of the ~~Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing~~Company, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration dateParent shall not, and ~~may, without the consent of the Company~~shall cause Merger Sub not to, (i) ~~extend~~ decrease the Offer ~~beyond the initial expiration date if, at any scheduled~~ Price (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extensionexcept as permitted by this Agreement), (ii) ~~from time to time, extend~~ change the form of consideration payable in the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied~~(other than by adding consideration), ~~for up to two periods of ten (10) business days per extension or~~ (iii) decrease or limit the number of shares of Common Stock sought to be purchased in the Offer, (iv) amend or waive satisfaction of the Minimum Condition; (v) amend any term or condition of the Offer in any manner materially adverse to the holders of shares of Common Stock, or (vi) extend the ~~Offer for any period required by any rule, regulation or interpretation~~ expiration of the ~~United States Securities and Exchange Commission (“SEC”~~Offer except as provided in Section 2.1(d). Merger Sub shall not, nor shall Parent cause or permit Merger Sub to, revoke, abandon or terminate the ~~staff thereof, applicable~~ Offer except pursuant to ~~the Offer. In~~ Section 10.1 or impose additional conditions or requirements in addition to the ~~foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~Offer Conditions. (bc) On the date of commencement of the Offer, Parent and Merger Sub shall (i) file or cause to be filed with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a combined Schedule 13E-3 and Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ filed under cover of Schedule TO (together with all ~~amendments,~~ amendments and supplements ~~and exhibits~~ thereto, the “Schedule TO”~~). The Schedule TO shall include~~) and related offer to purchase, ~~as exhibits, the Offer to Purchase and a form of~~ letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, ~~together with~~ and including any supplements or amendments ~~and supplements~~ thereto, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be ~~filed with the SEC and, subject~~ disseminated to the ~~Company’s compliance with Section 1.2(c), disseminated to~~ holders of ~~Shares, in each case~~ shares of Common Stock as and to the extent required by applicable ~~Law~~U.S. federal securities laws. The Company agrees to promptly furnish to Parent and ~~Sub~~Merger Sub in writing, on for inclusion in the ~~one hand~~Offer Documents, all information concerning the Company required by applicable law to be included in the Offer Documents or that may be reasonably requested by Parent or Merger Sub in connection with the preparation of the Offer Documents. Parent, Merger Sub and the ~~Company, on the other hand, agree~~ Company each agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect or as otherwise required by ~~Law.~~ applicable law and Merger Sub shall, and Parent ~~and~~ further agrees to cause Merger Sub ~~further agree to~~ 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~~shares of Common Stock, in each case as and to the extent required by applicable ~~Law~~U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO~~ Offer Documents, and any ~~amendment thereto before it is filed~~ amendments thereto, prior to the filing thereof with the ~~SEC, and~~ SEC or dissemination thereof to the holders of shares of Common Stock. Parent and Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel~~counsel with a copy of any written comments with respect to the Offer Documents from the SEC or its staff, and shall consult with the Company regarding any telephonic notification of any oral comments with respect to the Offer Documents from the SEC or its staff, and shall consult with the Company and its counsel to the extent reasonably practicable under the circumstances before responding to any written comments with respect to the Offer Documents from the SEC or its staff, in each case promptly after the receipt thereof. In ~~addition,~~ the event that Parent ~~and~~ or Merger Sub ~~agree to provide the Company with~~ receives any ~~comments, whether written or oral, that Parent, Sub or their counsel may receive from time to time prior to the expiration or termination of the Offer,~~ comments from the SEC or its staff with respect to the Offer Documents, each shall (i) respond 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 and (ii) take all other commercially reasonable actions necessary to resolve the issues raised therein. (d) The Offer shall remain open until that date that is twenty (20) Business Days following (and including the day of) the commencement of the Offer or ~~communications~~such later date to which the Offer may be extended in accordance with this paragraph (d) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub may, without the consent of the Company, (i) extend and re-extend the Offer on one or more occasions for one (1) or more periods of not more than ten (10) Business Days each, so long as the last such extension does not cause the Acceptance Date (hereinafter defined) to occur after April 30, 2008, if at the then-scheduled Expiration Date any of the Offer Conditions shall not be satisfied or waived; (ii) extend and re-extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; and (iii) extend and re-extend the Offer on one or more occasions for an aggregate period of not more than twenty (20) Business Days so long as the last such extension does not cause the Acceptance Date to occur after April 30, 2008, if the Minimum Condition has been satisfied but less than that number of shares of Common Stock have been validly tendered that, when added to the number of shares of Common Stock beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by Parent or any of its Affiliates or Subsidiaries, represents less than 90% of the outstanding shares of Common Stock (on a fully diluted basis). Merger Sub (or Parent on its behalf) may, in its sole discretion, elect to provide a subsequent offering period for the Offer pursuant to, and on the terms required by, Rule 14d-11 promulgated under the Exchange Act. Nothing contained in this Section 2.1(d) shall be construed to affect any termination rights set forth in Article X hereof. (e) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver by Parent, on behalf of Merger Sub, of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and ~~Sub shall give due consideration~~ pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to ~~all reasonable views~~ the Offer promptly after the Expiration Date (the time and ~~comments~~ date of such acceptance for payment, the ~~Company and its legal counsel with respect thereto. (c)~~ “Acceptance Date”). Parent shall provide or cause to be provided to Merger Sub ~~promptly following~~ on a timely basis the ~~expiration of the Offer or any subsequent extension thereof, as applicable, all~~ funds necessary to ~~promptly pay in full in cash~~ purchase any and all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the ~~aggregate Offer Price for those Shares that have been validly tendered~~ Offer. (f) Merger Sub shall be entitled to deduct and ~~not withdrawn~~ withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Common Stock such amounts as Merger Sub reasonably determines that it is required to deduct and ~~that Sub is obligated to accept for payment pursuant~~ withhold with respect to the ~~Offer and permitted to accept for~~ making of such payment under the Code, and the rules and regulations promulgated thereunder, or under any other applicable ~~Law~~Tax law. To the extent that amounts are so withheld by Merger Sub, and paid over to the applicable Governmental Authority, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Common Stock in respect of which such deduction and withholding was made.

Appears in 1 contract

Samples: Merger Agreement (Quadra Realty Trust, Inc.)

The Offer. (a) Provided that this Agreement shall not --------- have been terminated in accordance with ~~Section 8.1~~ Article VIII hereof and so long as none of the events ~~described in any of paragraphs~~ set forth on Annex A hereto (athe "Tender Offer Conditions") ~~or (b) of Annex III hereto~~ shall ------- ----------------------- have occurred and ~~be continuing (unless waived by Parent or Sub)~~are continuing, on the fifth Business Day after the date of this Agreement Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days following~~ at the ~~date hereof~~Offer Price. The ~~obligations~~ obligation of Sub to accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto~~Tender Offer Conditions. Subject to the ~~prior satisfaction or waiver by Parent or Sub of conditions~~ proviso set forth in ~~Annex III hereto,~~ the immediately succeeding sentence and the obligations of Parent and Sub ~~shall, and Parent shall cause Sub to, consummate~~ to extend 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 under certain circumstances as set forth in this ~~Agreement~~ Section 2.1(a), the Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the ~~conditions set forth in Annex III hereto~~circumstances giving rise to any such Tender Offer Conditions. Parent and Sub expressly ~~reserves~~ reserve the right to ~~waive any of such conditions, to increase the Offer Price and to make any other changes in~~ modify the terms of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date or waive any Tender Offer Condition; provided, however, that neither Parent nor Sub ~~shall not~~-------- ------- shall, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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~~ Company, (~~such consent~~ i) reduce the number of Shares to be ~~authorized~~ purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer, (v) make any change to the terms of the Offer which is adverse in any manner to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the ~~Company Board~~ sixth sentence of ~~Directors~~ this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a ~~duly authorized committee thereof). Notwithstanding the foregoing~~period up to twenty (20) Business Days, but ~~subject~~ in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the ~~parties’ respective rights~~ expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to ~~terminate~~ comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Assuming prior satisfaction or waiver of the Tender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with ~~Section 8.1~~the terms of the Offer, the Shares which have been validly tendered and not withdrawn at or prior to the expiration of the Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, 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~~ for up to ten (10) Business Days in the ~~initial~~ aggregate notwithstanding that all conditions to the Offer have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any of the Tender Offer Conditions, other than (x) the Minimum Condition, (y) the condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or 8.1(d)(iv) or (z) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A, but only to the extent that the failure of such condition is due to an event making it illegal to purchase Shares pursuant to the Offer. If, on any scheduled expiration date ~~if, at any scheduled (or extended) expiration~~ of the Offer, the Offer would have expired due to the failure to satisfy (w) any of the ~~conditions~~ Tender Offer Conditions set forth in clause (iii)(a), (iii)(b) or (iii)(c) of Annex ~~III hereto~~ A, (~~other than~~ x) the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or (y) the Minimum Condition, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer (A) ~~shall~~ in the case of clause (w) or (x), from time to time for one or more periods not ~~be satisfied or waived for up to two periods of not more than~~ exceeding, in each case, ten (10) ~~business days per extension~~Business Days, but in no event later than the Termination Date and (iiB) ~~from~~ in the case of clause (y), for one or more periods not exceeding, in the aggregate, twenty (20) Business Days, but in no event later than the Termination Date, unless Parent, in each case, reasonably believes at such time ~~to time, extend the~~ that such Tender Offer ~~if at the scheduled or extended Expiration Date the Minimum~~ Condition is not capable of being satisfied. In addition, ~~for up~~ notwithstanding anything in this Section 2.1(a) to ~~two periods~~ the contrary, if the Company shall have affirmatively announced to the stockholders of the Company a neutral position with respect to an Acquisition Proposal, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer to ten (10) ~~business days per extension or (iii) extend~~ Business Days after the ~~Offer for any period required by any rule, regulation or interpretation~~ date of ~~the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any~~ initial announcement of such ~~limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~neutral position. (b) On As soon as reasonably practicable on the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ Commission a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Schedule TO") with respect to the Offer. The Schedule TO shall contain ----------- (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, as well as all other information and ----------- exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal, summary advertisement and such other information and exhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The ~~Offer Documents will~~ Company and its counsel shall be --------------- given reasonable opportunity to review and comment upon the Schedule TO prior to its filing with the Commission. The Schedule TO shall comply in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws and, on the ~~Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be~~ date filed with the ~~SEC and~~Commission and the date first published, ~~subject~~ sent or given to the ~~Company’s compliance with Section 1.2(c), disseminated to~~ holders of the 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 ~~each case as and~~ order to make the ~~extent required~~ statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by ~~applicable Law~~Parent or Sub with respect to any information supplied by the Company in writing for inclusion in the Schedule TO. Each of Parent and Sub, on the one hand, and the Company, on the other hand, ~~agree~~ agrees to promptly correct any information provided by it for use in the Offer Documents ~~if and to the extent~~ that it shall be, or have ~~become~~ become, false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Sub further agree to take all steps necessary to cause the ~~Offer Documents~~ Schedule TO as so corrected to be filed with the ~~SEC~~ Commission and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. ~~The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and~~ Each of Parent and Sub ~~shall give due consideration~~ agrees to ~~all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition,~~ counsel with information with respect to any oral comments and copies of any written comments 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~~ the ~~expiration or termination of the Offer, from the SEC~~ Commission or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ 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 provide the Company and its ~~legal~~ counsel an opportunity to participate in the response of Parent or Sub to such comments, including by participating with ~~respect thereto~~Parent and Sub or their counsel in any discussions with the Commission or its staff. (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 1 contract

Samples: Merger Agreement (Royal Ahold)

The Offer. (a) Provided that this Agreement shall not --------- have been terminated in accordance with ~~Section 8.1~~ Article VIII hereof and so long as none of the events ~~described in any of paragraphs~~ set forth on Annex A hereto (athe "Tender Offer Conditions") ~~or (b) of Annex III hereto~~ shall ------- ----------------------- have occurred and ~~be continuing (unless waived by Parent or Sub)~~are continuing, on the fifth Business Day after the date of this Agreement Sub shall, and Parent shall cause Sub to, commence (within the meaning of Rule 14d-2 promulgated under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days following~~ at the ~~date hereof~~Offer Price. The ~~obligations~~ obligation of Sub to accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto~~Tender Offer Conditions. Subject to the ~~prior satisfaction or waiver by Parent or Sub of conditions~~ proviso set forth in ~~Annex III hereto,~~ the immediately succeeding sentence and the obligations of Parent and Sub ~~shall, and Parent shall cause Sub to, consummate~~ to extend 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 under certain circumstances as set forth in this ~~Agreement~~ Section 2.1(a), the Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the ~~conditions set forth in Annex III hereto~~circumstances giving rise to any such Tender Offer Conditions. Parent and Sub expressly ~~reserves~~ reserve the right to ~~waive any of such conditions, to increase the Offer Price and to make any other changes in~~ modify the terms of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date or waive any Tender Offer Condition; provided, however, that neither Parent nor Sub ~~shall not~~-------- ------- shall, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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~~ Company, (~~such consent~~ i) reduce the number of Shares to be ~~authorized~~ purchased pursuant to the Offer, (ii) reduce the Offer Price, (iii) impose any additional conditions to the Offer, (iv) change the form of consideration payable in the Offer, (v) make any change to the terms of the Offer which is adverse in any manner to the holders of the Shares, (vi) extend the expiration date of the Offer beyond the twentieth (20/th/) Business Day after commencement of the Offer except (A) as required by applicable law, (B) as specified below in the ~~Company Board~~ sixth sentence of ~~Directors~~ this Section 2.1(a) or (C) that if any condition to the Offer has not been satisfied or waived, Sub may, in its sole discretion, extend the expiration date of the Offer from time to time for one or more periods not exceeding, in each case, ten (10) Business Days, unless Parent reasonably believes that such condition is not capable of being satisfied within such time, in which case Sub may extend the expiration date of the Offer for a ~~duly authorized committee thereof). Notwithstanding the foregoing~~period up to twenty (20) Business Days, but ~~subject~~ in no event later than the Termination Date, (vii) waive the Minimum Condition, (viii) waive the Tender Offer Condition relating to the ~~parties’ respective rights~~ expiration of the waiting period under the HSR Act or the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A unless Sub shall pay for all Shares validly tendered and not withdrawn promptly following Sub's acceptance for payment of such Shares, or (ix) waive the Tender Offer Condition set forth in clause (iii)(f) of Annex A; provided, -------- however, that the Offer may be extended so as to ~~terminate~~ comply with applicable rules ------- and regulations of the Commission or the staff thereof, unless the reason for such extension is the result of a material breach of this Agreement by Parent or Sub. Assuming prior satisfaction or waiver of the Tender Offer Conditions, Parent shall provide funds to Sub and Sub shall, as soon as legally permissible after the commencement thereof, accept for payment and pay for, in accordance with ~~Section 8.1~~the terms of the Offer, the Shares which have been validly tendered and not withdrawn at or prior to the expiration of the Offer. If, on any expiration date of the Offer, more than 80% but less than 90% of the Shares have been validly tendered and not withdrawn, 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~~ for up to ten (10) Business Days in the ~~initial~~ aggregate notwithstanding that all conditions to the Offer have been satisfied, so long as Sub irrevocably waives the continued satisfaction of any of the Tender Offer Conditions, other than (x) the Minimum Condition, (y) the condition contained in clause (iii)(f) of Annex A, to the extent this Agreement is terminated pursuant to Section 8.1(a), 8.1(b)(i), 8.1(c), 8.1(d)(iii) or 8.1(d)(iv) or (z) any of the Tender Offer Conditions set forth in clause (iii)(a) or (iii)(b) of Annex A, but only to the extent that the failure of such condition is due to an event making it illegal to purchase Shares pursuant to the Offer. If, on any scheduled expiration date ~~if, at any scheduled (or extended) expiration~~ of the Offer, the Offer would have expired due to the failure to satisfy (w) any of the ~~conditions~~ Tender Offer Conditions set forth in clause (iii)(a), (iii)(b) or (iii) (c) of Annex ~~III hereto~~ A, (~~other than~~ x) the Tender Offer Condition relating to the expiration of the waiting period under the HSR Act or (y) the Minimum Condition, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer (A) ~~shall~~ in the case of clause (w) or (x), from time to time for one or more periods not ~~be satisfied or waived for up to two periods of not more than~~ exceeding, in each case, ten (10) ~~business days per extension~~Business Days, but in no event later than the Termination Date and (iiB) ~~from~~ in the case of clause (y), for one or more periods not exceeding, in the aggregate, twenty (20) Business Days, but in no event later than the Termination Date, unless Parent, in each case, reasonably believes at such time ~~to time, extend the~~ that such Tender Offer ~~if at the scheduled or extended Expiration Date the Minimum~~ Condition is not capable of being satisfied. In addition, ~~for up~~ notwithstanding anything in this Section 2.1(a) to ~~two periods~~ the contrary, if the Company shall have affirmatively announced to the stockholders of the Company a neutral position with respect to an Acquisition Proposal, Parent shall, at the request of the Company, cause Sub to extend the expiration date of the Offer to ten (10) ~~business days per extension or (iii) extend~~ Business Days after the ~~Offer for any period required by any rule, regulation or interpretation~~ date of ~~the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any~~ initial announcement of such ~~limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~neutral position. (b) On As soon as reasonably practicable on the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ Commission a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “"Schedule TO") with respect to the Offer. The Schedule TO shall contain ----------- (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and the related letter of transmittal (the "Letter of ----------------- --------- Transmittal") and summary advertisement, as well as all other information and ----------- exhibits required by law (which Schedule TO, Offer to Purchase, Letter of Transmittal, summary advertisement and such other information and exhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The ~~Offer Documents will~~ Company and its counsel shall be --------------- given reasonable opportunity to review and comment upon the Schedule TO prior to its filing with the Commission. The Schedule TO shall comply in all material respects with ~~all applicable~~ the provisions of applicable federal securities laws and, on the ~~Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be~~ date filed with the ~~SEC and~~Commission and the date first published, ~~subject~~ sent or given to the ~~Company’s compliance with Section 1.2(c), disseminated to~~ holders of the 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 ~~each case as and~~ order to make the ~~extent required~~ statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by ~~applicable Law~~Parent or Sub with respect to any information supplied by the Company in writing for inclusion in the Schedule TO. Each of Parent and Sub, on the one hand, and the Company, on the other hand, ~~agree~~ agrees to promptly correct any information provided by it for use in the Offer Documents ~~if and to the extent~~ that it shall be, or have ~~become~~ become, false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Sub further agree to take all steps necessary to cause the ~~Offer Documents~~ Schedule TO as so corrected to be filed with the ~~SEC~~ Commission and the other Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. ~~The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and~~ Each of Parent and Sub ~~shall give due consideration~~ agrees to ~~all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition,~~ counsel with information with respect to any oral comments and copies of any written comments 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~~ the ~~expiration or termination of the Offer, from the SEC~~ Commission or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ 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 provide the Company and its ~~legal~~ counsel an opportunity to participate in the response of Parent or Sub to such comments, including by participating with ~~respect thereto~~Parent and Sub or their counsel in any discussions with the Commission or its staff. (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 1 contract

Samples: Merger Agreement (Us Foodservice/Md/)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1 and none~~ 8, as promptly as practicable after the date of this Agreement but in no event more than ten Business Days after the ~~events described in any~~ date of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, Sub ~~shall,~~ shall (and Parent shall cause Sub to, ) commence (within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended~~ Act) the Offer. (~~together~~ b) In accordance with the ~~rules~~ terms and regulations promulgated thereunder, the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements conditions of this ~~Section 1.1(a)) shall be~~ Agreement, and subject only to the satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Annex ~~III hereto. Subject to~~ I (collectively, the ~~prior satisfaction or waiver by Parent or Sub~~ “Offer Conditions”) and, for the avoidance of ~~conditions set forth in Annex III hereto~~doubt, no other conditions, Sub ~~shall,~~ shall (and Parent shall cause Sub to), ~~consummate~~ at or as promptly as practicable following the Expiration Time, irrevocably accept for purchase (the time of acceptance for purchase, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in ~~accordance with its terms and accept for payment and~~ any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) pay for all ~~Shares~~ shares of Company Common Stock validly tendered and not properly withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the Offer. Parent shall provide or cause to be provided to 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 Sub becomes obligated to purchase pursuant to the Offer. (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains~~ in accordance with the terms set forth in this Agreement and subject only to the ~~conditions set forth in Annex III hereto~~Minimum Condition and the other Offer Conditions. ~~Parent~~ Sub expressly reserves the right to ~~waive any of such conditions, to~~ (i) increase the Offer ~~Price~~ Price, (ii) waive any Offer Condition other than the Minimum Condition and to (iii) make any other changes in to the terms and conditions of the Offer not inconsistent with the terms of ~~the Offer~~this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Sub shall not, and Parent shall cause Sub not to, (A) decrease the Offer ~~Price or~~ Price, (B) change the form of consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, ~~waive or change~~ (C) decrease the ~~Minimum Condition~~ maximum number of shares of Company Common Stock sought to be purchased in the Offer, (~~as defined in Annex III hereto)~~D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or ~~amend~~ supplement any of the ~~conditions set forth~~ Offer Conditions (i) in ~~Annex III hereto~~ a manner that adversely affects the holders of Company Common Stock or that makes such Offer Condition more difficult to satisfy or (ii) in any other circumstance, without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by Section 1.1(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or ~~amend~~ supplement any ~~other term or condition~~ of the ~~Offer, in each case~~ other terms of the Offer in any manner adverse to the holders of ~~the~~ Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, ~~impose any conditions to~~ unless this Agreement is terminated in accordance with Section 8. (d) The Offer shall expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the ~~Offer that are not set forth on Annex III hereto, or extend the Offer beyond a~~ date that is ~~twenty-one~~ 20 Business Days (21calculated in accordance with Rule 14d-1(g)(3) ~~business days after~~ under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer ~~or the last extension~~ (~~as permitted in accordance with this Section 1.1), if any,~~ such initial expiration date and time of the Offer, ~~whichever is~~ the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(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 ~~Date~~Time”). (e) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject Subject to the parties’ respective rights to terminate this Agreement pursuant to Section 8, Sub shall, and Parent shall cause Sub to, extend the Offer from time to time as follows: (i) If, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived by Parent and Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Sub shall be required to, and Parent shall be required to cause Sub to, extend the Offer on no more than two occasions in consecutive increments of five Business Days each (each such increment to end at 5:00 p.m., New York City time, on the last Business Day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that Sub shall not be required to extend the Offer to a date later than the Termination Date unless the breach by Parent or Sub of any of their representations and warranties set forth in this Agreement or their failure to perform any of their obligations under this Agreement has been the principal cause of or resulted in the failure of the Offer Acceptance Time to occur by the Termination Date; (ii) Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or the NASDAQ Stock Market LLC (the “NASDAQ”) or its staff; and (iii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any action in accordance with Section ~~8.1, Sub shall, upon~~ 9.9 to enforce specifically the ~~written request~~ performance of the ~~Company at least one business day before~~ terms and provisions of this Agreement by Parent or Sub, the ~~then-scheduled expiration date~~Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the court presiding over such action, as the case may be. Sub shall not, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) Parent shall not ~~be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time~~permit Sub to, extend the Offer if in any manner except as required or expressly permitted pursuant to this Section 1.1(e). (f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or 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 hereof and at ~~the scheduled~~ or ~~extended Expiration Date the Minimum Condition is not satisfied, for up~~ prior to ~~two periods of ten (10) business days per extension or (iii) extend~~ the Offer ~~for any period required by any rule~~Acceptance Time, ~~regulation or interpretation of the United States Securities~~ and ~~Exchange Commission (“SEC”), or the staff thereof, applicable~~ such adjustment to the ~~Offer. In addition~~ Offer Price shall provide to the ~~foregoing and excluded from any~~ holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such ~~limitations, Sub also may provide a “subsequent offering period”~~ action. (g) In the event that this Agreement is terminated in accordance with ~~Rule 14d-11 under~~ Section 8, Sub shall (and Parent shall cause Sub to) as promptly as practicable (and in any event within 24 hours of such termination) irrevocably and unconditionally terminate the ~~Exchange Act~~Offer, and shall not acquire any shares of Company Common Stock pursuant to the Offer and shall cause any depository acting on behalf of Parent or Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof. (bh) On As promptly as practicable on the date of commencement of the ~~Offer~~Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Sub shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments~~exhibits, amendments and supplements ~~and exhibits~~ thereto, the “Schedule TO”~~). The Schedule TO shall include, as exhibits,~~ ) that will contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal ~~and summary advertisement~~ (~~collectively~~the Schedule TO, together with ~~any amendments and supplements thereto~~all documents included therein pursuant to which the Offer will be made, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares~~shares of Company Common Stock. Each of Parent, ~~in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand,~~ Sub and the ~~Company, on the other hand, agree~~ Company agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent ~~and Sub~~ further ~~agree~~ agrees to ~~take~~ use all ~~steps necessary~~ reasonable efforts to promptly cause the Offer Documents as so corrected to be filed with the SEC and to promptly be disseminated to holders of ~~Shares~~shares of Company Common Stock, in each case as and to the extent required by applicable Law. The Company shall promptly furnish or otherwise make available to Parent, Sub or Parent’s legal counsel any information concerning the Company and the Company’s subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to the filing thereof with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. ~~In addition,~~ Parent and Sub agree to provide the Company and its counsel with any comments (including a summary of any oral comments~~, whether written or oral,~~ ) that Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after 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~~ Each of Parent and Sub shall give ~~due consideration to all reasonable views and comments of~~ the Company and its ~~legal~~ counsel a reasonable opportunity to participate in the response to any comments of the SEC or its staff with respect ~~thereto~~to the Offer Documents and shall respond promptly to any such comments. (ci) ~~Parent shall provide or cause~~ Parent, Sub and the Exchange Agent with respect to ~~be provided to Sub promptly following the expiration of~~ the Offer ~~or any subsequent extension thereof, as applicable, all funds necessary~~ shall be entitled to ~~promptly pay in full in cash~~ deduct and withhold from the ~~aggregate~~ Offer Price ~~for those Shares that have been validly tendered and not withdrawn~~ payable pursuant to the Offer such amounts as are required to be deducted and ~~that Sub is obligated to accept for payment pursuant~~ withheld with respect to the ~~Offer and permitted to accept for~~ making of such payment under ~~applicable~~ the Internal 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 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 1 contract

Samples: Merger Agreement (Xplore Technologies Corp)

The Offer. (a) ~~Provided that~~ Subject to the terms and conditions of this ~~Agreement~~ Agreement, Devon shall mail to holders of Andxxxxx Xxares and Andxxxxx Xxtions as soon as practicable but in any event not ~~have been terminated~~ later than 11:59 p.m. (Calgary time) on September 12, 2001, an offer to purchase all of the outstanding Andxxxxx Xxares (including the associated Rights) including any Andxxxxx Xxares which may become outstanding pursuant to the exercise of outstanding Andxxxxx Xxtions, for a price of $40.00 in cash for each Andxxxxx Xxare which offer shall be made in accordance with ~~Section 8.1~~ this Agreement, the Act and ~~none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred~~ Securities Laws and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject ~~only~~ to the conditions set forth in ~~Annex III hereto~~Schedule A hereto (the "Offer", which term shall include any amendments to, or extensions of, such Offer, including, without limitation, increasing the consideration, removing or waiving any condition or extending the date by which Andxxxxx Xxares may be tendered). Devon and Andxxxxx xxall cooperate in making on a timely basis any filings with respect to the Offer, including amendments thereafter on a timely basis as required by Securities Laws. The Offer shall be prepared in both the English and French languages and in accordance with this Agreement, the Act and Securities Laws. Devon shall provide Andxxxxx xxth a draft copy of the Offer Documents prior to mailing for its review and comment. (b) Devon may make the Offer itself or through any direct or indirect subsidiary. In the event that a Devon subsidiary makes or participates in the making of the Offer, the term "Devon" as used herein shall include such subsidiary, other than in Article 5 where the term "Devon" shall not include such subsidiary, but Devon shall continue to be liable to Andxxxxx, xs principal obligor, for such subsidiary's obligations hereunder and for any default by such subsidiary in the performance of its obligations hereunder. (c) The Offer shall expire at the Initial Expiry Time, except that the Offer may be extended, at the sole discretion of Devon, if the conditions thereto set forth in Schedule A hereto are not satisfied on the date and time at which the Offer expires and if Devon determines, acting reasonably, that there is a reasonable prospect that the conditions of the Offer may not be satisfied prior to the Expiry Time. In addition, in the event that any appropriate regulatory approval is not obtained prior to the time the Offer is scheduled to terminate, unless such approval has been denied, Devon agrees that it will extend the Offer for a period of not less than 10 days past the Initial Expiry Time pending receipt of such approval, provided that Devon shall not be required to extend the Offer past December 31, 2001 or such later date as may be mutually agreed in writing by Andxxxxx xxd Devon. Subject to the ~~prior~~ satisfaction or waiver ~~by Parent or Sub~~ of the conditions set forth in ~~Annex III~~ Schedule A hereto, ~~Sub shall, and Parent~~ Devon shall ~~cause Sub to, consummate the Offer in accordance with its terms and~~ within three days accept for payment and pay for all ~~Shares~~ Andxxxxx Xxares validly tendered (and not ~~withdrawn promptly following the acceptance of Shares for payment~~ properly withdrawn) pursuant to the Offer. ~~The Offer shall be made by means~~ Each of ~~an offer~~ Devon and Andxxxxx xxall use all commercially reasonable efforts to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in consummate the Offer, subject to the terms and conditions thereof. (d) It is agreed that Devon may, in its sole discretion, waive ~~or change the Minimum Condition (as defined in Annex III hereto), modify or amend~~ any ~~of the conditions set forth in Annex III hereto or otherwise modify or amend any other~~ term or condition of the ~~Offer, in each case in~~ Offer for its benefit provided that if Devon takes up and pays for any ~~manner adverse to the holders of the Company Common Stock, impose any conditions to the Offer that are~~ Andxxxxx Xxares it shall acquire not set forth on Annex III hereto, or extend the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other less than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the OfferRequired Shares. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent Devon agrees that it shall ~~have become false~~ not amend any term or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.condition of

Appears in 1 contract

Samples: Pre Acquisition Agreement (Devon Energy Corp/De)

The Offer. (a) ~~Provided that this Agreement shall not have been terminated~~ As promptly as practicable (but in ~~accordance with Section 8.1 and none~~ no event later than five business days after the public announcement of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~execution hereof), ~~Sub shall, and Parent~~ Purchaser shall ~~cause Sub to,~~ commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder, the “~~"Exchange Act”")) a tender offer (the "Offer") for all of the outstanding Shares (including the related Preferred Stock Purchase Rights) at a price of $12.00 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 ~~within ten~~ Price"), subject to the conditions set forth in Annex A hereto. (10b) ~~business days following the date hereof.~~ The obligations of ~~Sub~~ Purchaser to commence the Offer and to accept for payment and to pay for any Shares validly tendered ~~and not withdrawn~~ on or prior to the expiration of the Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ and not withdrawn shall be subject only to the conditions set forth in Annex ~~III~~ A hereto~~. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth~~ ; provided, that Purchaser's right in Annex ~~III hereto, Sub shall, and Parent shall cause Sub to, consummate~~ A hereto to terminate 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~~ shall be subject to ~~the Offer~~Purchaser's obligations under this Agreement. The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") ~~that contains~~ containing the terms set forth in this Agreement and the conditions set forth in Annex ~~III~~ A hereto~~. Parent~~ . (c) Purchaser expressly reserves the right to ~~waive any of such conditions, to increase the Offer Price and to make any other changes in~~ modify the terms of the Offer; provided, ~~however~~that, ~~that Sub~~ without the Company's prior written consent, Purchaser shall ~~not, and Parent shall cause Sub~~ not ~~to,~~ decrease the Offer ~~Price or~~ Price, change the form of consideration to be paid in ~~which any component of~~ the ~~Offer Price is payable~~Offer, waive the Minimum Condition or decrease the number of Shares sought ~~in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto or otherwise modify~~ or amend any other ~~term or~~ condition of the ~~Offer, in each case~~ Offer in any manner adverse to the holders of the ~~Company Common Stock~~Shares (other than with respect to insignificant changes or amendments and subject to the penultimate sentence of this Section 1.1) or impose additional conditions without the written consent of the Company; provided further, ~~impose any~~ however, that, if on the initial scheduled expiration date of the Offer, which shall be 20 business days after the date that the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, Purchaser may, from time to time until such time as all such conditions are satisfied or waived, in its sole discretion, extend the expiration date provided, however, that ~~are~~ the expiration date of the Offer may not be extended beyond March 1, 1999. Parent and Purchaser agree that if all of the conditions set forth on Annex ~~III hereto~~A hereto are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Purchaser shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Purchaser shall not be required to extend the Offer beyond ~~a date that is twenty-one (21) business days after commencement of~~ March 1, 1999. In addition, the Offer or Price may be increased and the ~~last extension (as permitted~~ Offer may be extended to the extent required by applicable Law in ~~accordance~~ connection with ~~this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below~~such increase, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company. Purchaser shall, ~~(i) extend~~ on the ~~Offer beyond~~ terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares validly tendered as promptly as practicable; provided, however, that if, immediately prior to the initial expiration date ~~if, at any scheduled (or extended) expiration~~ of the Offer, ~~any of~~ the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares ~~that have been~~ validly tendered and not withdrawn pursuant to the Offer ~~and~~ equal less than 90% of the outstanding Shares, Purchaser may extend the Offer for a period not to exceed 10 business days, notwithstanding that ~~Sub is obligated to accept for payment pursuant~~ all conditions to the Offer are satisfied as of such expiration date of the Offer so long as Purchaser irrevocably waives the satisfaction of any of the conditions to the Offer (other than the Minimum Condition and ~~permitted~~ the condition set forth in paragraph (b) of Annex A hereto) that subsequently may not be satisfied during such extension to ~~accept for payment under applicable Law~~the Offer.

Appears in 1 contract

Samples: Tender Offer Statement

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article VIII and ~~none of the events described in any of paragraphs (a) or (b) of Annex III hereto~~ 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 conditions set forth in Exhibit A hereto (~~unless waived by Parent or Sub~~the “Offer Conditions”) (other than the Minimum Condition and condition (b) on Exhibit A hereto), Merger Sub shall, and Parent shall cause Merger Sub to, use commercially reasonable efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ including the rules and regulations promulgated thereunder, the “Exchange Act”)) ~~the Offer within ten~~ not later than three (103) ~~business days~~ Business Days following the date ~~hereof. The obligations of Sub to accept for payment~~ hereof (and ~~to pay for~~ in any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, event Merger Sub shall, and Parent shall cause Merger Sub to, ~~consummate~~ commence not later than five (5) Business Days following the date hereof), an offer to purchase all outstanding Common Shares at the Offer ~~in accordance with its terms~~ Price. The obligations of Merger Sub, and of Parent to cause Merger Sub, to accept for payment and pay for ~~all~~ any Common Shares tendered ~~and not withdrawn promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer. The~~ Offer shall be ~~made~~ subject to the satisfaction or waiver by ~~means~~ Merger Sub of ~~an offer to purchase (~~the “Offer ~~to Purchase”) that contains~~ Conditions and the terms ~~set forth in this Agreement~~ and ~~the~~ conditions ~~set forth in Annex III hereto~~hereof. ~~Parent~~ Merger Sub expressly reserves the ~~right~~ right, in its sole discretion, to waive any ~~of such conditions~~Offer Condition, in whole or in part, at any time or from time to ~~increase the Offer Price and~~ time, or to ~~make any other changes in~~ modify the terms or conditions of the Offer~~; provided~~, ~~however~~except that, ~~that~~ without the written consent of the Company, Merger Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease~~ (i) reduce the Offer ~~Price or~~ Price, (ii) change the form of consideration payable in ~~which any component of~~ the Offer ~~Price is payable~~(other than by adding consideration), ~~decrease~~ (iii) reduce the number of Common Shares ~~sought in~~ subject to the Offer, (iv) waive or change the Minimum Condition (as defined in ~~Annex III hereto~~Exhibit A), ~~modify or amend any~~ (v) add to the Offer Conditions, (vi) extend the expiration of the ~~conditions~~ Offer except as required or permitted by Section 1.1(b) or (vii) modify any Offer Condition or any term of the Offer set forth in ~~Annex III hereto or otherwise modify or amend any other term or condition of the Offer,~~ this Agreement in ~~each case in any~~ a 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,~~ Shares. Either Parent or extend the Offer beyond a date that is 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 belowMerger Sub may, in ~~each case~~ its sole and absolute discretion and without the ~~prior written~~ consent of the ~~Company (such consent to~~ Company, increase the Offer Price, in which case the Offer shall be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and mayextended, without the consent of the Company, as required by applicable Law. The Company agrees that no Common Shares held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) The Offer shall expire on the date that is twenty (20) Business Days (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer, except as may otherwise be required by applicable Law; provided, however, that if at any scheduled expiration date of the Offer, all of the Offer Conditions shall have been satisfied or waived other than the Minimum Condition, Merger Sub may, or if requested by the Company, Merger Sub shall, extend the Offer to the earliest to occur of (i) a date that is no more than fifteen (15) Business Days after such previously scheduled expiration date (the length of each such period to be determined by Merger Sub in its sole discretion), or (ii) the later of (A) three (3) months from the date hereof or (B) such other date on or prior to the Merger Outside Date as Parent may specify in its sole discretion upon delivery of written notice to the Company (the “Offer Outside Date”); provided further, that Merger Sub may, in its sole discretion, (A) extend the Offer ~~beyond~~ for a period of no more than 15 (fifteen) Business Days in the ~~initial~~ aggregate, if at any time at or prior to any scheduled expiration date ifof the Offer, ~~at any scheduled~~ less than 78.75% of the number of Common Shares then outstanding less the number of Support Agreement Shares (~~or extended~~if any) held in a voting trust in accordance with a Support Agreement, have been validly tendered and not withdrawn and/or (B) provide a subsequent offering period (a “Subsequent Offering Period”) after the expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. . If (b1) ~~On the~~ as of any scheduled expiration date of ~~commencement of the Offer, Parent and Sub 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~~ x) all ~~amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits,~~ of the Offer ~~to Purchase and a form~~ Conditions shall not have been satisfied or waived, (y) no further extensions or re-extensions of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer ~~Documents~~ are required pursuant to this Section 1.1(b) and (z) Merger Sub shall elect by delivery of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject a written notice to the Company~~’s compliance with Section 1.2(c)~~, ~~disseminated to holders~~ or (2) all of ~~Shares~~the Offer Conditions shall not have been satisfied or waived as of the Offer Outside Date, then, in each case of clauses (1) and (2), the Offer shall terminate. The termination of the Offer pursuant to the immediately preceding sentence is referred to herein as the “Offer Termination.” If the Offer is terminated or withdrawn by Merger Sub, or this 2 Agreement is terminated by Parent in accordance with Section 8.1, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Common Shares to the registered holders thereof to the extent required by ~~applicable Law. Parent and Sub, on~~ the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination terms of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) ~~Parent shall provide or cause~~ Subject to ~~be provided to Sub promptly following~~ the ~~expiration~~ terms of the Offer ~~or any subsequent extension thereof~~and this Agreement and the satisfaction of all of the Offer Conditions, ~~as applicable,~~ Merger Sub will accept for payment and pay for all ~~funds necessary to promptly pay in full in cash the aggregate Offer Price for those~~ Common Shares ~~that have been~~ validly tendered and not validly withdrawn pursuant to the Offer ~~and that Sub is obligated~~ as soon as practicable after the expiration date thereof (as the same may be extended or required to ~~accept for payment pursuant to~~ be extended) or (in the ~~Offer and permitted to accept for payment under applicable Law~~case of any Common Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof.

Appears in 1 contract

Samples: Merger Agreement (CKX, Inc.)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and ~~Parent~~ Purchaser shall cause Sub to, as promptly as practicable, but in no event later than December 2, 1996, commence (within the meaning of Rule 14d-2 under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”) an offer to purchase for cash (the "Offer") any and all of the Company's outstanding shares of common stock, par value $.01 per share (the "Shares" or the "Common Stock")) , at a price not less than $19.09 per Share, net to the seller in cash (the "Offer ~~within ten (10)~~ Price"). The Offer shall have a scheduled expiration date 20 business days following the ~~date hereof~~commencement thereof. The ~~obligations of~~ Sub to shall, and Purchaser shall cause Sub to, accept for payment and to pay for ~~any~~ all Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration~~ terms of the Offer (as ~~it may be extended in accordance with requirements of this Section 1.1(a)) shall be~~ soon as such actions are permitted under applicable law, subject only to the conditions set forth in Annex ~~III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall,~~ A hereto and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made ~~by means of~~ pursuant to an offer to purchase (the “"Offer to Purchase”") ~~that contains~~ containing the terms set forth in this Agreement and the other conditions set forth in Annex ~~III~~ A hereto. ~~Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that~~ Sub shall not, and ~~Parent~~ Purchaser shall ~~cause~~ not permit Sub ~~not~~ to, decrease the Offer ~~Price or change~~ Price, extend the ~~form of consideration in which any component~~ expiration date of the Offer ~~Price is payable, decrease~~ beyond the ~~number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex III hereto~~ twentieth business day following commencement thereof or otherwise ~~modify or~~ amend any other ~~term or~~ condition of the ~~Offer, in each case~~ Offer 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 date that is 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 Shares without the prior written consent of the ~~Company (such consent to be authorized by~~ Company; provided, however, that Sub may extend the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request expiration date of the ~~Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company,~~ Offer if (i) ~~extend the Offer beyond the initial expiration date if, at any scheduled (~~one or ~~extended) expiration of the Offer, any of the~~ more conditions set forth in Annex ~~III~~ A hereto ~~(other than the Minimum Condition)~~ shall not be satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension,~~ (ii) ~~from time to time~~Purchaser reasonably determines, ~~extend~~ with the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation prior approval of the ~~United States Securities and Exchange Commission~~ Company (~~“SEC”),~~ such approval not to be unreasonably withheld or ~~the staff thereof, applicable~~ delayed) that such extension is necessary to comply with any legal or regulatory requirements relating to the Offer. ~~In addition~~ Purchaser will not tender into the Offer any Shares beneficially owned by it. The Company agrees that no Shares held by the Company or any Subsidiary of the Company will be tendered pursuant to the ~~foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~Offer. (b) On the date of the commencement of the Offer, ~~Parent~~ Purchaser and Sub shall file with the United States Securities and Exchange Commission (the "SEC~~, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ ") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer ~~(together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall~~ which will include, as exhibits, ~~the~~ an Offer to Purchase and a form of letter of transmittal and summary advertisement (~~collectively,~~ together with any amendments and supplements thereto, the “"Offer Documents~~”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a~~"). The ~~Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent~~ Company and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company its counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto~~ Offer Documents before ~~it is~~ they are filed with the SEC. In addition, ~~and Parent and~~ Sub ~~shall give due consideration~~ agrees to ~~all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel in writing with any ~~comments, whether written or oral, that Parent~~comments Purchaser, Sub or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretothereof. (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 1 contract

Samples: Merger Agreement (PCS Holding Corp)

The Offer. (a) Provided that ~~this Agreement~~ nothing shall ~~not~~ have occurred that, had the Offer been ~~terminated in accordance with Section 8.1 and none~~ commenced, would give rise to a right to terminate the Offer pursuant to any of the ~~events described~~ conditions set forth in Annex I, as promptly as practicable after the date hereof (and in any ~~of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~event no later than five Business Days after the date hereof), ~~Sub~~ Merger Subsidiary shall, and Parent shall cause ~~Sub~~ Merger Subsidiary to, commence (within the meaning of Rule 14d-2 under the ~~Securities Exchange Act of 1934, as amended (together~~ 1000 Xxx) the Offer. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the ~~rules and regulations promulgated thereunder~~terms of the Offer, ~~the “Exchange Act”)) the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn~~ prior to the scheduled expiration of the Offer (as it may be extended ~~in accordance~~ hereunder) and not withdrawn, a number of Company Shares that, together with ~~requirements~~ the Company Shares then directly or indirectly owned by Parent, represents at least a majority of ~~this Section 1.1(a)~~all Company Shares then outstanding (the “Minimum Condition”) ~~shall be subject only~~ and to the other conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent I. Merger Subsidiary expressly reserves the right to waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ and to make any ~~other changes~~ change in the terms of or conditions to the Offer; ~~provided~~provided that unless otherwise provided by this Agreement or previously approved by the Company in writing, ~~however~~(i) the Minimum Condition may not be waived, (ii) no change may be made that ~~Sub shall not~~changes the form of consideration to be paid pursuant to the Offer, ~~and Parent shall cause Sub not to, decrease~~ decreases the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable, decrease~~ the number of Company Shares sought in the Offer, ~~waive or change~~ imposes conditions to the ~~Minimum Condition (as defined~~ Offer in ~~Annex III hereto), modify or amend any of the conditions~~ addition to those set forth in Annex ~~III hereto~~ I, or otherwise ~~modify~~ amends or ~~amend any other term or condition of~~ modifies the ~~Offer, in each case~~ Offer in any manner materially adverse to the holders of ~~the~~ Company ~~Common Stock~~Shares, ~~impose any conditions to~~ and (iii) the Offer ~~that are~~ may not set forth on Annex III hereto, or extend the Offer beyond a date that is 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”) be extended except as set forth ~~below,~~ in ~~each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof~~this Section 2.01(a). ~~Notwithstanding the foregoing, but subject~~ Subject to the ~~parties’ respective rights to terminate~~ terms and conditions of this ~~Agreement~~ Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (for this purpose calculated in accordance with Section ~~8.1, Sub shall, upon~~ 14d-1(g)(3) under the ~~written request of~~ 1000 Xxx) after the ~~Company at least one business day before~~ date that the ~~then-scheduled expiration date, and may, without the consent of the Company, (i)~~ Offer is commenced. Merger Subsidiary shall extend the Offer ~~beyond the initial expiration date~~ (1) if, at ~~any~~ the scheduled (or ~~extended)~~ extended expiration date of the Offer, any of the conditions ~~set forth in Annex III hereto (other than~~ to the ~~Minimum Condition)~~ Offer shall not be have been satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, ~~(ii)~~ from time to time, ~~extend~~ until the earliest to occur of (x) the satisfaction or waiver of such conditions, (y) the reasonable determination by Parent that any such condition to the Offer ~~if at the scheduled or extended Expiration Date the Minimum Condition~~ is not ~~satisfied~~capable of being satisfied on or prior to the End Date, ~~for up~~ provided that the inability to ~~two periods~~ satisfy such condition does not result from any breach of ~~ten~~ any provision of this Agreement by Parent or Merger Subsidiary, and (10z) ~~business days per extension or~~ the End Date, and (~~iii~~2) ~~extend the Offer~~ for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the Offer or any period required by Applicable Law. Following expiration of the Offer~~. In addition to the foregoing and excluded from any such limitations~~, ~~Sub also may~~ Merger Subsidiary may, in its sole discretion, provide one or more subsequent offering periods (each, a “~~subsequent offering period”~~ Subsequent Offering Period”) in accordance with Rule 14d-11 ~~under~~ of the ~~Exchange~~ 1934 Act, if, as of the commencement of each such period, there shall not have been validly tendered and not withdrawn pursuant to the Offer and any prior Subsequent Offering Period that number of Company Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253(a) of Delaware Law. 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 Merger Subsidiary to, accept for payment and pay for, as promptly as practicable, all Company Shares (A) validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer and/or (B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any applicable withholding Taxes. (b) On As soon as practicable on the date of commencement of the Offer, Parent and ~~Sub~~ Merger Subsidiary shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The Schedule TO~~ ) that shall ~~include~~include the summary term sheet required thereby and, as ~~exhibits~~exhibits or incorporated by reference thereto, the Offer to Purchase and ~~a form~~ forms of letter of transmittal and summary ~~advertisement~~ advertisement, if any, in respect of the Offer (collectively, together with any amendments ~~and~~ or supplements thereto, the “Offer Documents”)~~. Subject to Section 5.2~~, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be disseminated to holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC ~~and, subject~~ and the Offer Documents as so corrected to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Company Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable LawU.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents each time before any ~~amendment thereto before it~~ such document is filed with the SEC, and Parent and ~~Sub~~ Merger Subsidiary shall give ~~due~~ reasonable and good faith consideration to ~~all reasonable additions, deletions or modifications thereto suggested~~ any comments made by the Company and its ~~legal~~ counsel. ~~In addition,~~ Parent and ~~Sub agree to~~ Merger Subsidiary shall promptly provide the Company and its counsel with (A) any ~~comments~~comments or other communications, whether written or oral, that Parent, ~~Sub~~ Merger Subsidiary or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of ~~such comments~~those comments or other communications, 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 (B) a reasonable opportunity to ~~review any responses to such comments or communications, and~~ participate in the response of Parent and ~~Sub~~ Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall ~~give due consideration to all reasonable views~~ be given), including by participating with Parent and ~~comments of~~ Merger Subsidiary or their counsel in any discussions or meetings with the ~~Company and its legal counsel with respect thereto~~SEC. (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 1 contract

Samples: Merger Agreement (Hyperion Solutions Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article X and provided further that the Company is prepared (in accordance with Section ~~8.1 and none~~ 1.2) to file the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the date of ~~the events described~~ this Agreement, but in any event not later than 15 Business Days from the date of ~~paragraphs~~ this Agreement, Merger Sub shall (~~a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), 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 (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the ~~Offer within ten~~ Offer. (10b) ~~business days following the date hereof.~~ The ~~obligations~~ obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any Shares validly tendered and not validly withdrawn ~~prior~~ pursuant to the ~~expiration of~~ Offer shall be subject to: (i) there being validly tendered in the Offer (~~as it may be extended~~ and not validly withdrawn) prior 1. The Offer Price payable in ~~accordance with requirements~~ respect of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares each Share validly tendered and not validly withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the ~~Offer.~~ Offer shall be paid net to the seller in cash, without interest, less any applicable Tax withholding. (c) The Offer shall be made by means of an offer to purchase (the “"Offer to Purchase”") that ~~contains~~ describes the terms and conditions of the Offer as set forth in this ~~Agreement and~~ Agreement, including the ~~conditions set forth in Annex III hereto~~Offer Conditions. Parent ~~expressly reserves~~ and Merger Sub reserve the right (in their sole discretion) to ~~waive~~ waive, in whole or in part, any ~~of such conditions~~Offer Condition (other than the Minimum Condition), to increase the Offer Price ~~and~~ or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not, and Parent shall ~~cause Sub~~ not toon Merger Sub's behalf, ~~decrease~~ (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price or change the form of consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, ~~waive or change the Minimum Condition~~ (~~as defined in Annex III hereto)~~iii) change, modify or ~~amend any of~~ waive the Minimum Condition, (iv) add to the conditions set forth on Exhibit A or modify or change any Offer Condition in ~~Annex III hereto~~ a manner adverse to any shareholders of the Company, (v) except as otherwise provided in this Section 1.1, extend or otherwise change the Expiration Time, or (vi) otherwise amend, modify or ~~amend~~ supplement any ~~other term~~ of the terms of the Offer in a manner adverse to any shareholders of the Company. (d) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with this Agreement or ~~condition~~ the Parties shall otherwise agree, the Offer shall expire at midnight, New York City time, on the later of (i) January 4, 2016 and (ii) the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such time, or such subsequent time to which the expiration of the Offer is extended in accordance with this Agreement, the "Expiration Time"). (e) Subject to the terms and conditions of this Agreement, unless this Agreement has been terminated in accordance with Article X, (i) Merger Sub may, and at the request of the Company shall (and Parent shall cause Merger Sub to), extend the Offer on one or more occasions for periods of up to 20 Business Days per extension (with the length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) up to and including the Termination Date, if at any then-scheduled Expiration Time any Offer Condition has not been satisfied or waived and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods if required by any Law applicable to the Offer; provided, however, that in no event shall Merger Sub be required to, nor shall Parent be required to cause Merger Sub to, extend the Offer beyond the Termination Date. (f) Following expiration of the Offer, Merger Sub (or Parent on its behalf) may, in ~~each case~~ its sole discretion, provide a subsequent offering period or one or more extensions thereof (a "Subsequent Offering Period") in ~~any manner adverse~~ accordance with Rule 14d-11 of the Exchange Act if, as of the 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 settlement or satisfaction of such guarantee), and not properly withdrawn pursuant to the ~~holders~~ Offer, that number of Shares necessary to permit the Merger to be effected without a meeting of shareholders of the Company ~~Common Stock, impose~~ in accordance with Section 321(d)(1)(ii) of the PBCL. Nothing contained in this Section 1.1 shall affect any ~~conditions~~ termination rights in Article X. (g) Subject to the ~~Offer that are not set forth on Annex III hereto,~~ terms and conditions of this Agreement and the satisfaction or ~~extend the Offer beyond a date that is twenty-one (21) business days after commencement~~ waiver of the Offer or Conditions prior to the ~~last extension~~ Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly after the date of the Expiration Time (as ~~permitted~~ it may be extended and re-extended in accordance with this Section 1.1), ~~if any,~~ accept for payment all Shares that have been validly tendered and not properly withdrawn pursuant to the Offer (such acceptance for payment of Shares following the satisfaction or waiver of the ~~Offer~~Offer Conditions as of the Expiration Time is referred to in this Agreement as the "Offer Closing"), ~~whichever is later~~ which acceptance shall be by written notice to the Paying Agent, (ii) on the “date of the Offer Closing, deposit or cause to be deposited with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Offer Price for such accepted Shares and (iii) cause the Paying Agent to pay the Offer Price (subject to any withholding of Taxes pursuant to Section 3.6) for all Shares so accepted as promptly as practicable after the Expiration ~~Date”~~Time. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any Shares that Merger Sub becomes obligated to accept for payment pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub's obligations under this Agreement. (h) ~~except as set forth below, in each case~~ Merger Sub shall not terminate the Offer prior to any then-scheduled Expiration Time without the prior written consent of the Company ~~(such consent to be authorized by~~ except in the ~~Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate~~ event that this Agreement is terminated pursuant to Article X. If the Offer is terminated or withdrawn by Merger Sub in accordance with ~~Section 8.1~~the terms of this Agreement, or this Agreement is terminated pursuant to Article X, prior to the acceptance for payment of the Shares tendered in the Offer, Merger Sub shall, ~~upon~~ and shall cause any depository acting on behalf of Merger Sub to, promptly (and in any event within three Business Days) return, in accordance with applicable Law, all tendered Shares to 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,~~ registered holders thereof. (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “"Schedule TO”"). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (~~collectively~~such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any amendments and supplements thereto, the “"Offer Documents”"). ~~Subject~~ The Company shall promptly furnish in writing to ~~Section 5.2,~~ Parent and Merger Sub all information concerning the Company ~~hereby consents to the~~ and its Subsidiaries that may be required by applicable Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange ActDocuments. Parent and Merger Sub ~~agree to~~ shall take all ~~commercially reasonable~~ steps reasonably necessary to cause the Offer Documents to be filed with the SEC ~~and, subject~~ and disseminated to the shareholders of the Company~~’s compliance with Section 1.2(c), disseminated to holders of Shares~~, in each case as and to the extent required by ~~applicable Law~~the Exchange Act. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Parent and Merger Sub further agree to take all steps reasonably necessary to cause the Offer ~~Documents~~ Documents, as so corrected (if applicable), to be filed with the SEC and disseminated to ~~holders~~ the shareholders of ~~Shares~~the Company, in each case as and to the extent required by ~~applicable Law~~the Exchange Act. ~~The~~ Parent and Merger Sub 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 ~~be given~~ 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. 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, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on ~~the Schedule TO and any amendment thereto before it is filed with the SEC~~such Offer Documents or response, and Parent and Merger Sub shall give ~~due~~ reasonable and good faith consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn pursuant to the Offer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Pep Boys Manny Moe & Jack)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any ~~Shares~~ shares of Common Stock validly tendered and not withdrawn prior to the expiration of the Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver~~ Tender Offer Conditions, any of which may be waived by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the OfferSub; provided, however, that neither Parent or Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive ~~or change~~ the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is twenty-one (21A) 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 (~~Company. The Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such ~~consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing~~Tender Offer Conditions and, ~~but~~ subject to the ~~parties’ respective rights~~ immediately preceding sentence, may be waived by Parent and Sub in whole or in part. Parent and Sub expressly reserve the right to ~~terminate this Agreement in accordance with Section 8.1, Sub shall, upon~~ modify the ~~written request~~ terms of the ~~Company at least one business day before~~ Offer, including without limitation to extend the ~~then-~~Offer beyond any scheduled expiration date; provided, ~~and may~~however, without the consent of the Company, Sub shall not (i) ~~extend~~ reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Price, (iii) add to the Tender Offer Conditions or otherwise modify the Tender Offer Conditions in a manner that is adverse to the holders of Common Stock or (iv) change the form of consideration payable in the Offer. Parent and Sub covenant and agree that, subject to the terms and conditions of this Agreement, including, but not limited to, the Tender Offer Conditions, unless the Company otherwise consents in writing, Sub will accept for payment and pay for the Common Stock in accordance with Rule 14e-1(c) of the Exchange Act; provided, however, that unless (i) any Person has made an Acquisition Proposal (as hereinafter defined), or (ii) any of the conditions of the Offer set forth in Annex A hereto shall not have been satisfied, the expiration date may not be extended beyond the 10th business day after the initial expiration date ~~if, at any scheduled (or extended) expiration~~ of the ~~Offer~~Offer without the Company's prior written consent, ~~any~~ such consent not to be unreasonably withheld (it being expressly understood and agreed that, if all of the conditions set forth in Annex ~~III~~ A hereto ~~(other than the Minimum Condition)~~ shall ~~not be~~ have been satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and ~~Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations~~no Person has made an Acquisition Proposal, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, 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”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the Offer Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and the Company shall have the ~~right~~ right, in its sole discretion, to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following extend the expiration of date (through one or more extensions) through the ~~Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash~~ 10th business day after 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 Lawinitial expiration date).

Appears in 1 contract

Samples: Merger Agreement (Carlton Communications PLC)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the events ~~described~~ set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III~~ I hereto shall have ~~occurred and be continuing (unless waived by Parent or Sub)~~occurred, ~~Sub shall, and Parent~~ Purchaser shall ~~cause Sub to,~~ commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the ~~“Exchange Act”~~"EXCHANGE ACT")) ), the Offer ~~within~~ as promptly as practicable following the date hereof (but in no case later than ten (10) business days ~~following~~ from the date hereof). The obligations of ~~Sub~~ Purchaser to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex ~~III~~ I hereto. Subject to the prior satisfaction or waiver by Parent or ~~Sub~~ Purchaser of the conditions of the Offer set forth in Annex ~~III~~ I hereto, ~~Sub shall, and Parent~~ Purchaser shall ~~cause Sub to,~~ consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the ~~“Offer to Purchase”~~"OFFER TO PURCHASE") that contains the terms set forth in this ~~Agreement~~ Agreement, and the conditions set forth in Annex ~~III~~ I hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that ~~Sub~~ Purchaser shall not, and Parent shall cause ~~Sub~~ Purchaser not to, decrease the Offer ~~Price or~~ Price, change the form of consideration payable in ~~which any component of~~ the ~~Offer Price is payable~~Offer, decrease the number of Shares sought in the Offer, ~~waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the~~ impose additional conditions ~~set forth in Annex III hereto or otherwise modify or amend any other term or condition of~~ to 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~~ offer beyond a the date that is ~~twenty-one~~ twenty (2120) 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”~~"EXPIRATION DATE") except as set forth below, waive or change the Minimum Tender Condition (as defined in Annex I) or amend any other condition of the Offer in any manner adverse to the Company or the holders of the Shares, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and Purchaser may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions ~~set forth in Annex III hereto (other than the Minimum Condition)~~ to Purchaser's obligation to accept Shares for payment, shall not be satisfied or ~~waived for up to two periods of not more than ten (10) business days per extension~~waived, (ii~~) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii~~) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“"SEC”"), or the staff thereof, applicable to the Offer, or (iii) extend (or re-extend) the Offer for an aggregate period of not more than twenty (20) business days (taking into account all such extensions and re extensions), beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of this sentence, if, as of such date, all of the conditions to Purchaser's obligations to accept for payment Shares are satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of the Company's stockholders in accordance with the DGCL. In ~~addition to the foregoing and excluded from any such limitations~~addition, ~~Sub also~~ Purchaser may provide a “"subsequent offering period” " in accordance with Rule ~~14d-11~~ 14d-l1 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and ~~Sub~~ Purchaser shall file with the SEC, pursuant to Regulation M-A under the Exchange Act (~~“Regulation~~ "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~~ "SCHEDULE TO”"). The Schedule TO shall ~~include~~include the summary term sheet required under Regulation M-A and, 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”~~"OFFER DOCUMENTS"). ~~Subject to Section 5.2, the~~ The Company hereby consents to the inclusion in the Offer Documents of the recommendation referred to in clause (iii) of Section 3.19 and the approval of the ~~Company~~ Board of Directors referred to in Section ~~3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act~~3.19. Parent and ~~Sub~~ Purchaser agree to take all ~~commercially reasonable~~ steps necessary to cause the Offer Documents to be filed with the SEC ~~and, subject to the Company’s compliance with Section 1.2(c),~~ and disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. Parent and ~~Sub~~Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by ~~Law~~law. Parent and ~~Sub~~ Purchaser further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review ~~and comment on~~ the Schedule TO ~~and any amendment thereto~~ before it is filed with the SEC~~, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel~~. In addition, Parent and ~~Sub~~ Purchaser agree to provide the Company and its counsel with any comments, whether written or oral, that Parent, ~~Sub~~ Purchaser or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly upon receipt of such comments, and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to ~~Sub promptly following the~~ Purchaser upon expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to ~~promptly~~ accept for payment, and pay ~~in full in cash the aggregate Offer Price for those Shares~~ for, any shares of Company Common Stock that ~~have been~~ are validly tendered and not withdrawn pursuant to the Offer and that ~~Sub~~ Purchaser is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.

Appears in 1 contract

Samples: Merger Agreement (Genzyme Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 8.1, and ~~none~~ provided further that the Company is prepared (in accordance with Section 1.2(b)) to file with the SEC, and to disseminate to holders of shares of Company Common Stock, the ~~events described~~ Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the date hereof (and in any event no later than the tenth Business Day after the date of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 ~~under~~ of the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer ~~within ten (10) business days following~~ to purchase all of the ~~date hereof~~outstanding Shares at the Offer Price, net to the seller in cash, without interest. The ~~obligations~~ obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered and not validly withdrawn ~~prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the terms and conditions of this Agreement, including the satisfaction of the conditions set forth in Annex ~~III hereto~~A (the “Offer Conditions”), and no other conditions. ~~Subject~~ The Offer Price payable for each Share validly tendered and not validly withdrawn pursuant to the ~~prior satisfaction or waiver by Parent or Sub~~ Offer shall be paid net to the holder of the Share in cash, without interest, on the terms and conditions set forth in ~~Annex III hereto~~this Agreement and in the Offer. (b) Merger Sub, or Parent on behalf of Merger Sub, expressly reserves the right to waive, in its sole discretion, 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 that, unless otherwise provided by this Agreement or previously approved by the Company in writing (which approval may be granted or withheld by the Company in its sole discretion), Merger Sub, and Parent on behalf of Merger Sub, shall not, subject to applicable Law: (i) decrease the Offer Price; (ii) change the form of consideration payable in the Offer; (iii) decrease the maximum number of Shares sought in the Offer; (iv) impose conditions to the Offer in addition to the Offer Conditions; (v) amend or modify any of the Offer Conditions in a manner that adversely affects the holders of Shares; (vi) change or waive the Minimum Tender Condition; (vii) extend or otherwise change the Expiration Date other than as required or permitted by this Agreement; or (viii) otherwise amend or modify any terms of the Offer in a manner that adversely affects the holders of Shares. (c) Subject to the terms and conditions of this Agreement, unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m., New York City time, on the date that is 20 Business Days following the commencement of the Offer, determined in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act (the “Initial Expiration Date,” and such date, or such subsequent date to which the expiration of the Offer is extended in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with Section 8.1, (i) if on any then-scheduled Expiration Date (A) the Minimum Tender Condition shall not have been satisfied or (B) any of the other Offer Conditions shall not have been satisfied (and, to the extent permitted under the terms of this Agreement, shall not have been waived by Parent), then Merger Sub may, and Parent may cause Merger Sub to, without limiting Merger Sub’s and Parent’s obligations under clause (ii) of this Section 1.1(c), extend the Offer on one or more occasions, in consecutive increments of up to five Business Days each (or such longer period as may be agreed by the Company), up to and including the Outside Date, the length of each such period to be determined by Merger Sub (or Parent on its behalf) in its sole discretion, to permit such Offer Condition to be satisfied; and (ii) (w) Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or ~~the~~ its staff ~~thereof,~~ or NASDAQ applicable to the Offer~~. In addition~~ ; provided that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date; (x) if on any then-scheduled Expiration Date, any of the Offer Conditions set forth in clauses (b) through (i) of Annex A is not satisfied (and, to the ~~foregoing~~ extent permitted under the terms of this Agreement, has not been waived by Parent), but is capable of being satisfied prior to the Outside Date, then, if requested by the Company, Merger Sub (or Parent on its behalf) shall extend the Offer for one or more extension periods of up to five Business Days each (or for such longer period as may be agreed by the Company), up to and ~~excluded from~~ including the Outside Date, the length of each such period to be determined by Merger Sub (or Parent on its behalf) in its sole discretion to permit such Offer Condition to be satisfied; and (y) if on any then-scheduled Expiration Date, the Offer Conditions (other than the Minimum Tender Condition) have been satisfied (or, to the extent permitted, have been waived by Parent), but the Minimum Tender Condition has not been satisfied, then, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one or more extension periods of at least five Business Days each, up to and including the Outside Date, the length of each such ~~limitations~~period to be determined by the Company in its sole discretion to permit such Offer Condition to be satisfied. (d) Subject to the foregoing, including the requirements of Rule 14d-11 of the Exchange Act, and upon the terms and subject to the conditions of the Offer, Merger Sub ~~also may provide a “subsequent offering period”~~ shall, and Parent shall cause Merger Sub to, accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Date. 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 in ~~accordance~~ order to comply with applicable Laws. Any such delay in payment shall be effected in compliance with Rule ~~14d-11~~ 14e-1(c) under the Exchange Act. (be) On 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 8. If this Agreement is terminated pursuant to Article 8, Merger Sub shall, and Parent shall cause Merger Sub to, promptly terminate the Offer without accepting any Shares previously tendered. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly 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 promptly as practicable on the date of commencement of the ~~Offer~~Offer (within the meaning of Rule 14d-2 of the Exchange Act), Parent and Merger Sub shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements~~ which shall contain or incorporate by reference an offer to purchase reflecting the terms and ~~exhibits thereto~~conditions of this Agreement, ~~the “Schedule TO”). The Schedule TO shall include, as exhibits,~~ including the Offer ~~to Purchase~~ Conditions, and a form of the letter of transmittal and summary advertisement and other ancillary documents and instruments, if any, in respect of the Offer (~~collectively~~such Schedule TO and the documents included therein, together with any amendments or supplements thereto, and ~~supplements~~ including exhibits thereto, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to (ii) cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares, in each case~~ Shares as and to the extent required by ~~applicable Law~~the Exchange Act. Each of Parent and ~~Sub~~Merger Sub shall cause the Offer Documents to (A) comply in all material respects with the Exchange Act and other applicable Laws and (B) not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, on in light of the ~~one hand~~circumstances under which they were made, not misleading; provided, however, that the foregoing shall not apply to any information contained or incorporated by reference in any Offer Document that was furnished or provided by the Company. Promptly after the date of this Agreement, the Company shall furnish to Parent and Merger Sub in writing all information concerning the Company and its stockholders that may be required by applicable Law or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents or for any action contemplated by this Section 1.1. Each of Parent, Merger Sub and the ~~Company, on the other hand, agree~~ Company agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Merger Sub ~~further~~ agree to take all steps necessary to cause the Offer ~~Documents~~ Documents, 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 Law. The Company and its counsel shall be given a reasonable opportunity to review ~~and comment on~~ the ~~Schedule TO and any amendment thereto~~ Offer Documents before ~~it is~~ they are filed with the SEC, and Parent and Merger Sub shall give ~~due~~ good faith consideration to ~~all~~ the reasonable additions, deletions or ~~modifications thereto~~ changes suggested by the Company ~~and~~ or its ~~legal~~ counsel. ~~In addition,~~ Parent and Merger Sub ~~agree to~~ shall provide the Company and its counsel with copies of any written comments, ~~whether written or oral~~and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive ~~from time to time prior to~~ after the ~~expiration or termination of the Offer,~~ date hereof from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of ~~such~~ those 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 written responses to such ~~comments or communications~~SEC comments, and Parent ~~and Sub~~ shall give ~~due~~ good faith consideration to ~~all~~ the reasonable ~~views and comments of~~ additions, deletions or changes suggested thereto by the Company and its ~~legal counsel~~ counsel. Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect ~~thereto~~to the Offer Documents. (cg) ~~Parent shall provide~~ If, between the date of this Agreement and the Effective Time, the outstanding Shares are changed into a different number or ~~cause to be provided to Sub promptly following the expiration~~ class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer ~~or any subsequent extension thereof, as applicable, all funds necessary~~ Price and the Merger Consideration shall each be appropriately adjusted 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 Lawreflect such change.

Appears in 1 contract

Samples: Merger Agreement (CoLucid Pharmaceuticals, Inc.)

The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 9.1 and (ii) none of the events ~~described~~ set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III~~ A hereto that would entitle Parent and Merger Subsidiary to fail to consummate the Offer shall have occurred and be continuing (~~unless~~ and shall not have been waived by ~~Parent or Sub~~Parent), ~~Sub shall~~as promptly as practicable, Merger Subsidiary shall (and Parent shall cause ~~Sub~~ Merger Subsidiary to, ) commence (within the meaning 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 ~~within ten (10) business days following~~ for any and all of the ~~date hereof~~Shares, at the Offer Price. The ~~obligations~~ obligation of ~~Sub~~ Merger Subsidiary to accept for payment and to pay for any Shares ~~validly~~ tendered (and ~~not withdrawn prior~~ the obligation of Parent to ~~the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)~~cause Merger Subsidiary to accept for payment and to pay for any Shares tendered) shall be subject only to (i) the condition that at least 80% of the outstanding Shares be validly tendered and not withdrawn (the “Minimum Condition”), and (ii) the other conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent A. Merger Subsidiary expressly reserves the right to ~~waive any of such conditions, to~~ increase the Offer Price ~~and~~ or to make any other changes in the terms and conditions of the Offer; provided, however, that ~~Sub shall not~~unless previously approved by the Company in writing, ~~and Parent shall cause Sub not to, decrease~~ no change may be made that (i) decreases the Offer Price or ~~change~~ the Cash Portion or the Stock Portion thereof, (ii) changes the form or combination of consideration to be paid in ~~which any component of~~ the ~~Offer Price is payable~~Offer, ~~decrease~~ (iii) reduces the number of Shares ~~sought~~ to be purchased in the Offer, ~~waive or change the Minimum Condition~~ (~~as defined in Annex III hereto), modify or amend any of~~ iv) amends the conditions set forth in Annex ~~III hereto~~ A to broaden the scope of such conditions, add any additional conditions, or otherwise ~~modify or amend any other term or condition of the Offer, in each case in any manner adverse to~~ adversely affect the holders of ~~the Company Common Stock~~Shares, ~~impose any conditions to~~ (v) extends the Offer ~~that are not set forth on Annex III hereto~~except as provided in Section 1.1(b), or ~~extend~~ (vi) amends or waives the ~~Offer beyond a date~~ Minimum Condition. It is agreed that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex ~~III hereto (~~A are for the sole benefit of Parent and Merger Subsidiary and may be waived by Parent and Merger Subsidiary, in whole or in part at any time and from time to time, in their sole discretion, other than the Minimum Condition) , as to which prior written Company approval is required. The failure by Parent and Merger Subsidiary at any time to exercise any of the foregoing rights shall not be ~~satisfied~~ deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or ~~waived for up~~ its Subsidiary will be tendered in the Offer. (b) Subject to ~~two periods of not more than ten~~ the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (1020) business days ~~per extension~~after the date the Offer is commenced; provided, however, that without the consent of the Company Board (iithe “Company Board”), Merger Subsidiary may (i) from time to ~~time,~~ time extend the ~~Offer~~ Offer, if at the scheduled expiration date of the Offer any of the conditions to the Offer shall not have been satisfied or ~~extended Expiration Date~~ waived, until such time as such conditions are satisfied or waived, but not beyond the ~~Minimum Condition is not satisfied, for up~~ termination of this Agreement pursuant to ~~two periods of ten~~ Article IX; (~~10) business days per extension or (iii~~ii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ Securities and Exchange Commission (the “SEC”), ) or the staff ~~thereof,~~ thereof applicable to the Offer~~. In addition to the foregoing and excluded from any such limitations, Sub also may provide~~ ; or (iii) include a “subsequent offering ~~period”~~ period (as such term is defined in ~~accordance with~~ Rule ~~14d-11~~ 14d-1 under the Exchange Act. ) to the Offer for a period up to twenty (b20) On business days. Subject to the ~~date~~ terms and conditions of ~~commencement~~ the Offer and this Agreement, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Merger Subsidiary becomes obligated to accept for payment and pay for pursuant to the Offer, as promptly as practicable after the expiration of the Offer. No fraction of a share of Parent Common Stock will be issued in connection with the payment of the Stock Portion upon consummation of the Offer, but in lieu thereof each tendering shareholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) in the Offer shall receive from Parent an amount of cash (rounded to the nearest whole cent), without interest, equal to the product obtained by multiplying such fraction by the closing price of one (1) share of Parent Common Stock on the first date Merger Subsidiary accepts Shares for exchange in the Offer, as reported on the Nasdaq National Market (“Nasdaq”). With respect to any such Shares the Cash Portion shall be net to the seller thereof in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. (c) As soon as practicable after the date of this Agreement, Parent shall prepare and ~~Sub shall~~ file with the ~~SEC,~~ SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to ~~Regulation M-A~~ the Offer (the “Registration Statement”). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the “~~Regulation M-A~~Preliminary Prospectus”). As soon as practicable on the date the Offer is commenced, Parent and Merger Subsidiary shall file with the SEC a Tender Offer Statement on Schedule TO ~~with respect to the Offer~~ (together with all ~~amendments~~amendments and supplements thereto, ~~supplements~~ and including all exhibits thereto, the “Schedule TO”)) with respect to the Offer and shall cause the Offer Documents to be disseminated to holders of Shares. The Schedule TO shall ~~include,~~ contain as ~~exhibits,~~ an exhibit or incorporate by reference the ~~Offer to Purchase~~ Preliminary Prospectus (or portions thereof) and ~~a form~~ forms of the related letter of transmittal and summary ~~advertisement~~ advertisement, if any. Parent and Merger Subsidiary agree that they shall cause the Schedule TO, the Preliminary Prospectus and all amendments or supplements thereto (~~collectively,~~ which together ~~with any amendments and supplements thereto,~~ constitute the “Offer Documents”~~). Subject~~ ) to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with ~~all applicable provisions of~~ the Exchange ~~Act~~Act and the rules and regulations thereunder and other applicable Laws (as defined in Section 4.1(c)). Parent and ~~Sub~~ Merger Subsidiary further agree that the Offer Documents, on the date first published, sent or given to the Company’s shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Subsidiary with respect to information supplied by the Company or any of its shareholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Registration Statement or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and Parent and Merger Subsidiary further agree to take all ~~commercially reasonable~~ steps necessary to cause the ~~Offer Documents~~ Schedule TO as so corrected to be filed with the SEC ~~and, subject~~ and the other Offer Documents as so corrected to be disseminated to the Company’s ~~compliance with Section 1.2(c), disseminated to holders of Shares~~shareholders, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Lawfederal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO TO, the Registration Statement and ~~any amendment thereto before it is filed~~ the Offer Documents prior to the filing thereof with the SEC~~, and~~ . Parent and ~~Sub shall give due consideration~~ Merger Subsidiary agree to ~~all reasonable additions, deletions or modifications thereto suggested by~~ provide in writing to the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel with any ~~comments, whether written or oral, that~~ comments Parent, ~~Sub~~ Merger Subsidiary or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of such ~~comments,~~ 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~~ provide Company and its ~~legal~~ counsel ~~shall be given~~ with a reasonable opportunity to ~~review any responses~~ participate in the response of Parent or Merger Subsidiary to such ~~comments or communications, and~~ comments. Parent ~~and Sub~~ shall ~~give due consideration to~~ use all reasonable ~~views~~ efforts to have the S-4 declared effective under the Securities Act as promptly as practicable after its filing and ~~comments~~ to maintain such effectiveness for so long as shall be required for the issuance of ~~the Company and its legal counsel with respect thereto. (c)~~ Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn Common Stock pursuant to the ~~Offer and that Sub~~ Offer. Following the time the S-4 is ~~obligated to accept for payment~~ declared effective, Parent shall file the final prospectus included therein under Rule 424(b) promulgated pursuant to the ~~Offer and permitted to accept for payment under applicable Law~~Securities Act.

Appears in 1 contract

Samples: Merger Agreement (Quovadx Inc)

The Offer. (a) Provided that this Agreement shall not have been terminated and subject to the provisions of this Agreement and the conditions set forth on Annex A hereto, as promptly as practicable after the date hereof, but in ~~accordance with Section 8.1 and none~~ no event later than ten business days following the public announcement of the ~~events described in any~~ terms of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, Merger Sub shall, and ~~Parent~~ Logitech Subsidiary shall cause Merger Sub to, ~~commence (~~commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (~~together with~~ the ~~rules and regulations promulgated thereunder~~"Exchange Act"), the ~~“Exchange Act”)) the Offer within ten (10) business days following the date hereof~~Offer. The ~~obligations~~ obligation of Merger Sub to, and of Logitech Subsidiary to cause Merger Sub to, accept for payment ~~and to pay for~~ any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ in the Offer shall be subject to the satisfaction of only those conditions set forth on Annex A. The initial expiration date of the Offer shall be the 20th "business day" (as such term is defined in Rule 14d- 1(g)(3) under the Exchange Act) following the commencement of the Offer (~~as it may be extended in accordance with requirements of this Section 1.1(a~~determined using Rules 14d-1(g)(3) and 14d-2 under the Exchange Act)~~) shall be subject only to the conditions set forth in Annex III hereto~~. ~~Subject to the prior satisfaction or waiver by Parent or~~ Merger Sub ~~of conditions set forth in Annex III hereto, Sub shall,~~ and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent Logitech Subsidiary expressly ~~reserves~~ reserve the right to waive any ~~of such conditions,~~ condition to ~~increase~~ the Offer ~~Price and to make any other changes in~~ or modify the terms of the Offer~~; provided~~, ~~however~~except that, ~~that~~ without the consent of the Company, Merger Sub shall not, and ~~Parent~~ Logitech Subsidiary shall not cause Merger Sub ~~not~~ to, ~~decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease~~ (i) reduce the number of ~~Shares sought in~~ shares of Company Common Stock subject to the Offer, (ii) reduce the Cash Portion or reduce the Stock Portion, (iii) waive or change the Minimum Condition (as defined in Annex ~~III hereto~~A), (iv) modify ~~or amend any of the conditions set forth in Annex 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~~ Stock or add to the conditions to the obligation of Merger Sub to, or Logitech Subsidiary to cause Merger Sub to, accept for payment any Shares tendered in the Offer ~~that are not~~ set forth on in Annex ~~III hereto~~A, or (v) except as provided in the next two sentences, extend the Offer ~~beyond a date that is twenty-one~~ or (21vi) ~~business days after commencement~~ change the form of ~~the Offer or the last extension (as permitted~~ consideration payable in ~~accordance with this Section 1.1), if any, of~~ the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Merger Sub ~~shall, upon the written request of the Company at least one business day before the then-scheduled expiration date~~may, and ~~may~~Logitech Subsidiary may cause Merger Sub to, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iiix) extend the Offer for any period required by any rule, ~~regulation or~~ regulation, interpretation of the ~~United States~~ Securities and Exchange Commission (“the "SEC~~”),~~ ") or the staff thereof; (y) from time to time extend the Offer, ~~applicable~~ if at the scheduled expiration date of the Offer any of the conditions to the ~~Offer~~Offer shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; or (z) extend the Offer for any reason on one or more occasions for an aggregate period of not more than 10 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 there shall not have been tendered (and not properly withdrawn) at least 90% of the outstanding Shares on a Fully Diluted Basis. ~~In addition~~ Logitech Subsidiary and Merger Sub agree that, if any one or more of the conditions to the ~~foregoing and excluded~~ Offer set forth on Annex A are not satisfied then, provided that such conditions are reasonably capable of being satisfied, Merger Sub shall, at the request of the Company, extend the Offer from time to time unless any such ~~limitations~~condition is no longer reasonably capable of being satisfied or any such event has occurred; provided, however, that in no event shall Merger Sub ~~also~~ be required to extend the Offer beyond July 15, 2001. Following expiration of the Offer, Merger Sub may, and Logitech Subsidiary may ~~provide~~ cause Merger Sub to, make available a “"subsequent offering period” " in accordance with Rule 14d-11 ~~under~~ of the Exchange Act. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Logitech Subsidiary shall cause Merger Sub to, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. With respect to any such Shares the Cash Portion shall be net to the seller thereof in cash, subject to reduction only for any applicable federal back- up withholding or stock transfer taxes payable by such seller. (b) On the date of commencement of the Offer, Parent shall file with the SEC a Registration Statement on Form F-4, which will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act to register the offer and sale of Registered Parent Shares represented by Parent ADSs pursuant to the Offer (as the same may be supplemented or amended, the "Form F-4"). On the date of commencement of the Offer, Logitech Subsidiary and Merger Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO (together with any communications filed with the SEC under cover of Schedule TO prior to commencement of the Offer in accordance with Rule 14d-2(b) under the Exchange Act, and as such Schedule TO may be supplemented or amended, the "Schedule TO") with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include, as exhibits, the Offer~~ contain an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule TO, the Form F-4 and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents”"). ~~Subject to Section 5.2~~Each of Logitech Subsidiary, Merger Sub and the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect~~ respect, and each of Logitech Subsidiary and Merger Sub shall, upon becoming aware that such information shall have become false or ~~as otherwise required by Law. Parent and Sub further agree to~~ misleading in any material respect, take all steps necessary to ~~cause~~ amend or supplement the Offer Documents and to cause the Schedule TO and Form F-4 as so ~~corrected~~ amended or supplemented to be filed with the SEC and for the other Offer Documents, as so amended or supplemented, to be disseminated to ~~holders of Shares~~the Company's stockholders, in each case as and to the extent required by applicable ~~Law~~federal securities laws. ~~The~~ Logitech Subsidiary and Merger Sub shall give the Company ~~shall be given~~ and its counsel a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is~~ Offer Documents prior to their being filed with the ~~SEC,~~ SEC or disseminated to the stockholders of the Company. Logitech Subsidiary and ~~Parent and~~ Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel in writing with any ~~comments, whether written~~ comments Logitech Subsidiary or ~~oral, that Parent,~~ Merger Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and ~~any written or oral responses thereto, and~~ shall provide 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~~ with a reasonable opportunity to ~~review any responses~~ participate in the response of Logitech Subsidiary and/or Merger Sub to such ~~comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (c)~~ comments. Parent shall ~~provide~~ not issue certificates 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 scrip representing fractional Parent ADSs pursuant to the ~~Offer and that Sub is obligated to accept for payment pursuant to~~ Offer. Logitech Subsidiary will pay cash in lieu of fractional Parent ADSs in accordance with the ~~Offer and permitted to accept for payment under applicable Law~~provision set forth in the last two sentences of Section 2.4(d) hereof.

Appears in 1 contract

Samples: Merger Agreement (Logitech International Sa)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 9.1 and ~~none of~~ the ~~events described~~ Company is prepared in ~~any of paragraphs~~ accordance with Section 2.2(a) to file with the SEC, and to disseminate to the Stockholders, the Schedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable (abut in no event later than 10 Business Days) ~~or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~after the date hereof, 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 (together with the rules and regulations promulgated thereunder~~Act), the ~~“Exchange Act”)~~Offer. (b) ~~the Offer within ten (10) business days following the date hereof.~~ The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any ~~Shares validly tendered and not withdrawn prior~~ shares of Company Common Stock pursuant to the ~~expiration of~~ Offer are subject to the ~~Offer~~ terms and the satisfaction or waiver (as ~~it may be extended~~ provided in ~~accordance with requirements~~ Section 2.1(c) below) of ~~this Section 1.1(a)) shall be subject only to~~ the conditions set forth in Annex ~~III hereto~~I (the “Offer Conditions”). ~~Subject~~ On the terms and subject to the ~~prior satisfaction or waiver by Parent or Sub~~ conditions of ~~conditions set forth in Annex III hereto~~the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, ~~consummate~~ accept and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) promptly on or after the Expiration Date (and in ~~accordance with its terms~~ any event within three business days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act)). The acceptance for payment of shares of Company Common Stock 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.” Parent shall provide, or cause to be provided, to Merger Sub on a timely basis funds necessary to purchase and pay for any and all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and ~~pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment~~ purchase pursuant to the Offer. ~~The Offer~~ Parent and Merger Sub shall, and each of Parent and Merger Sub shall ~~be made~~ ensure that all of their respective controlled Affiliates shall, tender any shares of Company Common Stock held by ~~means of an offer to purchase~~ them into the Offer. (~~the “Offer to Purchase”~~c) ~~that contains the terms set forth in this Agreement~~ Parent and ~~the conditions set forth in Annex III hereto. Parent~~ Merger Sub expressly ~~reserves~~ reserve the right to waive any of ~~such conditions~~the Offer Conditions other than the Minimum Condition, to increase the Offer Price ~~and~~ or to make any other changes in the terms and conditions of the ~~Offer~~Offer not inconsistent with the terms of this Agreement; ~~provided~~provided that, ~~however~~unless otherwise provided in this Agreement or previously approved by the Company in writing, ~~that~~ Parent and Merger Sub shall not~~, and Parent shall cause Sub not to,~~ : (i) decrease the Offer Price or change the form of consideration ~~in which any component of the Offer Price is payable, decrease the number of Shares sought~~ payable in the Offer, ~~waive~~ (ii) decrease the maximum number of shares of Company Common Stock subject to or ~~change~~ sought to be purchased in the ~~Minimum Condition~~ Offer, (~~as defined~~ iii) impose conditions on the Offer in ~~Annex III hereto)~~addition to the Offer Conditions or amend, modify or supplement any condition in a manner adverse to the Stockholders, (iv) waive, modify or amend ~~any of~~ the ~~conditions set forth in Annex III hereto or otherwise modify or~~ Minimum Condition, (v) amend any other term ~~or condition~~ of the ~~Offer,~~ Offer in ~~each case in any~~ a manner that is materially adverse to the ~~holders of~~ Stockholders or (vi) extend or otherwise change the ~~Company Common Stock, impose any conditions~~ Expiration Date except as required or permitted by Section 2.1(e). The Offer may not be terminated prior to the Offer that are not set forth on Annex III hereto, or extend the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate unless this Agreement is terminated or withdrawn in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act9.1. (bd) On the date ~~of commencement of~~ the ~~Offer~~Offer is commenced, Merger Sub shall, and Parent ~~and~~ shall cause Merger Sub ~~shall~~ to, file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (~~together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The~~ such Schedule TO ~~shall include, as exhibits,~~ and the documents included therein pursuant to which the Offer ~~to Purchase and a form of letter of transmittal and summary advertisement (collectively~~will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “Offer Documents”~~). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ ) and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be ~~filed with the SEC and, subject~~ disseminated to the ~~Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and~~ Stockholders to the extent required by applicable Law. The Company hereby consents to the inclusion of the Company Recommendation in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply in all material respects with the Exchange Act, the rules and regulations thereunder, and other requirements of applicable Law. The Company shall promptly furnish to Parent and ~~Sub, on the one hand, and~~ Merger Sub all information concerning the Company, on the ~~other hand~~Company Subsidiaries and the Stockholders that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 2.1(d), ~~agree~~ including communication of the Offer to the record and beneficial Stockholders. Each of the parties agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and to correct any material omissions therefrom, and Parent and Merger Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to ~~holders of Shares~~the Stockholders, in each case as and to the extent required by applicable Law. ~~The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and~~ Parent and Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel with any comments (including a summary of any oral comments~~, whether written or oral,~~ ) that Parent, Merger Sub or their counsel may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of such comments. Except from and after a Company Adverse Recommendation Change or in connection with any disclosures by Parent or Merger Sub in response to any public announcement expressly permitted by Section 7.8(f), ~~and any written or oral responses thereto, and the Company shall have the right to consult with Parent, Sub and their counsel~~ prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any ~~such comments~~comments of the SEC with respect to the Offer Documents, ~~either in written or oral form. The~~ Parent and Merger Sub shall provide the Company ~~and its legal counsel shall be given~~ with a reasonable opportunity to review ~~any responses to~~ and comment on such ~~comments~~ Offer Documents or ~~communications~~response, and Parent and Merger Sub shall give ~~due~~ reasonable consideration to ~~all~~ any comments provided by the Company. Parent and Merger Sub shall use reasonable ~~views and comments of the Company and its legal counsel with respect thereto~~best efforts to respond promptly to any such SEC comments. (ce) ~~Parent~~ Unless extended or earlier terminated pursuant to and in accordance with the terms of this Agreement, the Offer shall ~~provide or cause to be provided to Sub promptly~~ remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 2.1(e), calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the ~~expiration~~ commencement of the Offer (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 Agreement 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 Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) if on the then-effective Expiration Date, the Minimum Condition has not been satisfied or any ~~subsequent extension thereof~~of the other Offer Conditions have not been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of not more than 10 Business Days each (the length of such period to be determined by Parent and Merger Sub in their discretion), or for such longer period as ~~applicable~~the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive any Offer Conditions, other than the Minimum Condition); provided that, if all ~~funds necessary to promptly pay in full in cash~~ Offer Conditions other than the ~~aggregate Offer Price for those Shares that~~ Minimum Condition have been satisfied or waived, Merger Sub shall not be required to extend the Offer pursuant to this clause (i) for more than 20 Business Days and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff; provided that Merger Sub shall not in any event be required to extend the Offer beyond the Outside Date. In the event that this Agreement is validly ~~tendered~~ terminated pursuant to Section 9.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not ~~withdrawn~~ acquire any shares of Company Common Stock pursuant to the Offer and ~~that~~ shall cause any depositary acting on behalf of Merger Sub ~~is obligated~~ to ~~accept for payment pursuant~~ return, in accordance with applicable Law, all Tendered Shares to the ~~Offer and permitted to accept for payment under applicable Law~~registered holders thereof.

Appears in 1 contract

Samples: Merger Agreement (Audentes Therapeutics, Inc.)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with ~~Section 8.1~~ Article IX and none of the events ~~described~~ set forth in ~~any of~~ paragraphs (ai), (ii), (iii), (iv) or and (bv) of Annex ~~III~~ A hereto shall have ~~occurred and be continuing (unless waived by Parent or Sub)~~occurred, 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 (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the Offer as promptly as practicable following the date hereof and in any event within ~~ten~~ thirteen (1013) ~~business days following~~ Business Days after the date hereof. The ~~obligations~~ obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment shares of Company Common Stock validly tendered pursuant to the Offer and to pay the Offer Price for ~~any Shares validly~~ each such tendered and not subsequently withdrawn ~~prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ share shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction or waiver by Parent or Merger Sub of the conditions set forth in Annex ~~III~~ A (such conditions, as they may be amended in accordance with this Agreement, the “Tender Offer Conditions”). Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Section 2.1(b), to waive in whole or in part any such condition, to increase the Offer Price payable in the Offer, and to make any other changes to the terms and conditions of the Offer; provided, however, that without the prior written consent of the Company, Merger Sub shall not (i) amend or waive satisfaction of the Minimum Condition (as defined in Annex A), (ii) change the form of consideration to be paid pursuant to the Offer, (iii) decrease the Offer Price payable in the Offer, (iv) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (v) impose conditions to the Offer that are in addition to those set forth in Annex A hereto, (vi) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (vi) shall not limit the ability of Parent or Merger Sub to extend the Expiration Date as required by Section 2.1(b); (vii) amend or modify the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition), or (viii) amend or modify any other term of the Offer in any manner materially adverse to the holders of shares of Company Common Stock in their capacities as holders of shares of Company Common Stock. (b) The initial expiration date of the Offer shall be the twentieth (20th) Business Day after the date that the Offer is commenced (determined pursuant to Rule 14d-1(g)(3) and Rule 14d-2 under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Article IX hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with Article IX hereof, Merger Sub shall, and Parent shall cause Merger Sub to, ~~consummate~~ (i) extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Merger Sub, for such periods of up to five (5) Business Days at a time (or such other longer period as shall be consented to in writing by the Company) as Merger Sub may deem reasonably necessary, but, except as required by any applicable Law, rule, regulation, interpretation or position of the NASDAQ, the SEC or the staff of the SEC (the “SEC Staff”) applicable to the Offer (including in ~~accordance~~ connection with ~~its terms~~ an increase in the Offer Price), in no event may the Expiration Date be extended pursuant to this clause (i) to a date later than the Termination Date and (ii) extend the Expiration Date for any period required by any applicable Law, rule, regulation, interpretation or position of the NASDAQ, the SEC or the SEC Staff applicable to the Offer, including in connection with an increase in the Offer Price. Except as expressly provided in this Section 2.1(b), Merger Sub shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Company Common Stock that are not validly withdrawn. Nothing in this Section 2.1(b) shall affect any termination rights contained in Article IX hereof. (c) Subject to the terms and conditions set forth in this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause it to, (i) promptly after the Expiration Date, accept for payment and pay for (after giving effect to any required withholding Tax pursuant to Section 2.1(e)) all ~~Shares~~ shares of Company Common Stock that have been validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance shall be by written notice to the Paying Agent, (ii) promptly after the Acceptance Date, but no later than the close of business, New York City time, on the third Business Day thereafter, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Offer Price for such accepted shares of Company Common Stock, and (iii) as soon as practicable following such deposit, cause the ~~acceptance~~ Paying Agent to pay for all shares of ~~Shares~~ Company Common Stock so accepted for payment. In the event that the Acceptance Date occurs, but the number of shares of Company Common Stock that have been validly tendered and not properly withdrawn in the Offer, together with any shares of Company Common Stock then owned by Parent, assuming exercise of the Top-Up Option in full, is less than ninety percent (90%) of the outstanding shares of Company Common Stock on a fully diluted basis, Merger Sub may, in its sole discretion, commence a “subsequent offering period” (in accordance with Rule 14d-11 promulgated under the Exchange Act) for a number of days to be determined by Parent but not less than three (3) nor more than twenty (20) Business Days to acquire additional outstanding shares of Company Common Stock. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (after giving effect to any required withholding Tax) all additional shares of Company Common Stock validly tendered during such subsequent offering period. Parent shall provide or cause to be provided to Merger Sub on a timely basis the consideration necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Tender Offer Conditions is referred to in this Agreement as the “Offer Closing.” (d) On the date of commencement of the Offer~~. The~~ , Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the exhibits thereto, the “Schedule TO”) with respect to the Offer, which shall ~~be made~~ contain or shall incorporate by ~~means of~~ reference an offer to purchase (the “Offer to Purchase”) ~~that contains the terms set forth in this Agreement~~ and ~~the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms~~ forms of the ~~Offer; provided, however, that Sub shall not,~~ related letter of transmittal and ~~Parent shall cause Sub not to, decrease the Offer Price or change the form~~ forms of ~~consideration in which~~ notice of guaranteed delivery and any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 related summary advertisement (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and Sub 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, as exhibits~~, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the “Offer Documents”)~~. Subject to Section 5.2~~, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares, in each case~~ shares of Company Common Stock as and to the extent required by applicable Law. The Offer Documents shall comply in all material respects with the requirements under applicable Law. Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, ~~agree~~ agrees to correct promptly ~~correct~~ any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Merger Sub further 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~~shares of Company Common Stock, in each case as and to the extent required by applicable Law. The Company shall ~~be given~~ promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(d). Parent and Merger Sub shall give the Company and its counsel a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is~~ Offer Documents prior to such documents (or amendments or supplements thereto) being filed with the ~~SEC, and~~ SEC or disseminated to holders of shares of Company Common Stock. Parent and Merger Sub shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by~~ provide the Company and its ~~legal counsel. In addition, Parent and Sub agree to provide the Company~~ counsel with any ~~comments~~comments or communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from ~~time to time prior~~ the SEC or the SEC Staff with respect to the ~~expiration~~ Offer Documents promptly after the receipt of such comments or ~~termination~~ communications and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent or Merger Sub to such comments or communications. Parent and Merger Sub shall give reasonable and good faith consideration to suggestions of the ~~Offer,~~ Company or its counsel in response to such comments or communications. In the event that Parent or Merger Sub receives any comments from the SEC or ~~its staff~~ the SEC Staff with respect to the Offer Documents, each shall use commercially reasonable efforts to respond 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~~ take all other actions necessary to ~~all reasonable views and comments of~~ resolve the ~~Company and its legal counsel with respect thereto~~issues raised therein. (ce) ~~Parent~~ Parent, Merger Sub or the Paying Agent shall ~~provide or cause~~ be entitled to ~~be provided to Sub promptly following~~ deduct and withhold from 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 consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Paying Agent is required to deduct and ~~that Sub is obligated to accept for payment pursuant~~ withhold with respect to the ~~Offer and permitted to accept for~~ making of such payment under ~~applicable Law~~the Code, or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate Taxing Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.

Appears in 1 contract

Samples: Merger Agreement (Herley Industries Inc /New)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated in accordance with Section 8.1~~ Agreement, as promptly as practicable, and ~~none of the events described~~ in any event no more than seven (7) Business Days, after the date of ~~paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~this Agreement, ~~Sub~~ Merger Subsidiary shall, and Parent shall cause ~~Sub~~ Merger Subsidiary to, ~~commence (~~commence, within the meaning of Rule ~~14d-2~~ l4d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act, the ~~“Exchange Act”)) the Offer within ten (10) business days following the date hereof~~Offer. The ~~obligations~~ obligation of ~~Sub~~ Merger Subsidiary to, and of Parent to cause Merger Subsidiary to, accept for payment and to pay for any Shares ~~validly~~ tendered ~~and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction ~~or waiver by Parent or Sub~~ of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex ~~III hereto.~~ A and to the terms and conditions of this Agreement; provided that Parent ~~expressly reserves the right to~~ and Merger Subsidiary may waive any of ~~such conditions,~~ the conditions to ~~increase~~ the Offer ~~Price~~ (except for the Minimum Tender Condition which may not be waived without the prior written consent of the Company) and to may make ~~any other~~ changes in the terms and conditions of the ~~Offer; provided~~Offer except that, ~~however~~without the prior written consent of the Company, ~~that Sub shall not~~(i) no change may be made to the form of consideration to be paid, ~~and Parent shall cause Sub not to,~~ (ii) no decrease in the Offer Price or ~~change the form of consideration in which any component of the Offer Price is payable, decrease~~ the number of Shares sought in the ~~Offer~~Offer may be made, ~~waive~~ (iii) no change which imposes additional conditions to the Offer or ~~change the Minimum Condition (as defined in Annex III hereto), modify or amend~~ modifies any of the conditions set forth in Annex ~~III hereto or otherwise modify or amend any other term or condition of the Offer, in each case~~ A 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~~ Shares may be made and (iv) neither Parent nor Merger Subsidiary may extend ~~the Offer beyond a date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section ~~8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i~~2.1(c) ~~extend the Offer beyond the initial expiration date if, at any scheduled (~~or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”2.1(e), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the Offer, Parent and ~~Sub~~ Merger Subsidiary shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO ~~with respect~~ (as amended and supplemented from time to ~~the Offer (together with all amendments, supplements and exhibits thereto~~time, the “Schedule TO”)~~. The Schedule TO~~ , which shall ~~include~~comply in all material respects with the provisions of applicable federal securities Laws, ~~as exhibits,~~ and shall contain the offer to purchase relating to the Offer ~~to Purchase~~ and ~~a form~~ forms of the related letter of transmittal and ~~summary advertisement~~ other appropriate documents (~~collectively~~which documents, ~~together with any amendments and supplements thereto~~as amended or supplemented from time to time, are referred to herein collectively as the “Offer Documents”). ~~Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ Parent and the ~~approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub~~ Merger Subsidiary further agree to ~~take all commercially reasonable steps necessary to cause~~ disseminate the Offer Documents to ~~be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to~~ holders of ~~Shares, in each case~~ Shares as and to the extent required by applicable ~~Law~~federal securities Laws. In conducting the Offer, Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC, and Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and ~~Sub~~Merger Subsidiary agree to provide the Company (i) any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents promptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), on including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the ~~one hand~~SEC. Each of Parent, Merger Subsidiary and the ~~Company, on the other hand, agree~~ Company agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and ~~Sub~~ Merger Subsidiary further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and be disseminated to holders of Shares, in each ~~case~~ case, as and to the extent required by ~~applicable~~ Law. . (c) The ~~Company~~ initial scheduled expiration date of the Offer shall be ~~given a reasonable opportunity to review and comment~~ midnight, New York City time, on the ~~Schedule TO~~ twentieth Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (such initial date, or if and ~~any amendment thereto before it~~ only if the expiration time and date is ~~filed with~~ extended as authorized in this Agreement, such date as so extended, the ~~SEC~~“Expiration Date”); provided, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to provide the Company with any comments, whether written or oralhowever, that ~~Parent, Sub or their counsel may receive~~ Merger Subsidiary shall: (i) from time to time ~~prior~~ extend the Offer for one or more periods of up to 10 Business Days each, the ~~expiration or termination~~ length of each such period to be determined by Merger Subsidiary in its sole discretion, if at the scheduled Expiration Date any of the conditions of the Offer, ~~from~~ including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or ~~its~~ the staff ~~with respect~~ thereof applicable to the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer ~~Documents, promptly upon receipt of such comments, and any written or oral responses thereto, and~~ as soon as possible after the Company shall have the right to consult with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect theretoExpiration Date. (cd) If fewer than 90% of the issued and outstanding Shares are accepted for payment pursuant to the Offer by the Expiration Date, then Merger Subsidiary may, and at the request of the Company, shall, and upon any such request of the Company, Parent shall cause Merger Subsidiary to, provide for one or more subsequent offering periods of up to an additional twenty (20) Business Days in the aggregate (collectively, the “Subsequent Period”) pursuant to Rule 14d-11 of the Exchange Act; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. (e) Notwithstanding the above, in no event shall Merger Subsidiary be required to, or shall Parent be required to cause Merger Subsidiary to, extend the Offer beyond the End Date (as defined in Section 8.1(b)(i)). In no event shall Merger Subsidiary extend the Offer beyond the End Date without the consent of the Company. The Offer may not be terminated prior to its scheduled Expiration Date (as it may be extended in accordance with this Agreement) unless this Agreement is terminated in accordance with Section 8.1. (f) Parent shall provide or cause to be provided to ~~Sub promptly following~~ Merger Subsidiary on a timely basis 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Subsidiary becomes obligated to purchase 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~~Offer.

Appears in 1 contract

Samples: Merger Agreement (Parallel Petroleum Corp)

The Offer. (a) ~~Provided that~~ Subject to the provisions of this ~~Agreement shall not have been terminated~~ Agreement, as promptly as reasonably practicable but in ~~accordance with Section 8.1 and none of the events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub)~~no event later than May 17, 2000, Sub shall, and Parent shall cause Sub to, ~~commence (~~commence, within the meaning 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. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub to~~ and accept for ~~payment~~ payment, and to pay ~~for~~ for, any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in ~~Annex III hereto. Subject to~~ the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase attached Exhibit A (the “"Offer ~~to Purchase”~~Conditions") ~~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~~which may be waived in whole or in part by Sub in its sole discretion, ~~to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however,~~ except that Sub shall ~~not, and Parent shall cause Sub~~ not ~~to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer,~~ waive ~~or change~~ the Minimum Condition (as defined in ~~Annex III hereto~~Exhibit A) without the consent of the Company) and subject to the rights of Parent and Sub to terminate this Agreement as provided in Section 8. 1. Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Sub shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price or the Preferred Share Offer Price, (iii) impose any other conditions to the Offer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), ~~modify~~ (iv) except as provided in Sections 1.1(b) and (c), extend the Offer, (v) change the form of consideration payable in the Offer, or ~~amend any of the conditions set forth in Annex III hereto or otherwise modify or~~ (vi) amend any other term ~~or condition~~ of the ~~Offer,~~ Offer in ~~each case in any~~ a manner adverse to the holders of Shares. Sub shall not provide for a subsequent offering period in accordance with Rule 14d-11 under the ~~Company Common Stock, impose any conditions~~ Exchange Act. (b) Subject to the ~~Offer that are not set forth on Annex III hereto~~terms and conditions hereof, ~~or extend~~ the Offer ~~beyond a~~ shall expire at midnight, New York City time, on the date that is ~~twenty-one (21)~~ 20 business days after ~~commencement of~~ the date the Offer ~~or the last extension (as permitted in accordance with this Section 1.1)~~is commenced; provided, if any, of the Offer, whichever is later (the “Expiration Date”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, that Sub ~~shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and~~ may, without the consent of the Company, (i) extend the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the~~ Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended ~~Expiration Date~~ expiration date of the ~~Minimum Condition is~~ Offer any of the Offer Conditions shall not ~~satisfied~~be satisfied or waived, ~~for up to two periods of ten~~ until such time as such conditions are satisfied or waived, (~~10) business days per extension or (iii~~ii) extend the Offer for any period reasonably determined by Sub after consultation with its legal advisors to be required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States~~ Securities and Exchange Commission (“the "SEC~~”),~~ ") or the staff ~~thereof,~~ thereof applicable to the ~~Offer. In addition~~ Offer and (iii) if all Offer Conditions are satisfied or waived but the sum of the number of Common Shares tendered pursuant to the ~~foregoing~~ Offer and ~~excluded from any such limitations~~the number of Common Shares owned by Parent or one or more direct or indirect Subsidiaries of Parent is less than 90% of the outstanding Common Shares but at least 85% of the outstanding Common Shares, extend the Offer on one or more occasions for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence (provided that all Offer Conditions shall have been irrevocably deemed to have been satisfied or waived if Sub elects to extend the Offer pursuant to clause (iii) of this sentence), subject in the case of each of clauses (i) and (ii) of this sentence to the right of Parent, Sub ~~also may provide a “subsequent offering period”~~ or the Company to terminate this Agreement pursuant to the terms hereof. (c) Parent and Sub agree that if at any scheduled expiration date of the Offer, the Minimum Condition, the HSR Condition, the Exon-Xxxxxx Condition (as defined in Exhibit A) or either of the conditions set forth in paragraphs (e) or (f) of Exhibit A shall not have been satisfied, but at such scheduled expiration date all the conditions set forth in paragraphs (a), (b), (c), (d), (g) and (h) of Exhibit A shall then be satisfied, or if not then satisfied, are reasonably capable of being satisfied prior to November 10, 2000, at the request of the Company (confirmed in writing), Sub shall extend the Offer from time to time (each such individual extension not to exceed ten business days after the previously scheduled expiration date, unless the parties otherwise agree), subject to any right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms hereof. (d) Subject only to the Offer Conditions and so long as this Agreement has not been terminated in accordance with its terms, Sub shall, and Parent shall cause Sub to, accept for payment, and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule ~~14d-11~~ 14e-1(c) under the Exchange Act. (be) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO (the "Schedule TO") with respect to the ~~Offer (together with all amendments~~Offer, ~~supplements and exhibits thereto, the “Schedule TO”). The Schedule TO~~ which shall ~~include,~~ contain as ~~exhibits, the Offer~~ an exhibit or incorporate by reference an offer to ~~Purchase~~ purchase and a ~~form of~~ related letter of transmittal and summary advertisement (~~collectively~~such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments ~~and supplements~~ thereto, the “"Offer Documents”")~~. Subject to Section 5.2~~, ~~the Company hereby consents to the inclusion in the Offer Documents of the recommendation~~ and ~~the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ Parent and Sub ~~agree~~ shall cause to ~~take all commercially reasonable steps necessary to cause~~ be disseminated the Offer Documents to ~~be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to~~ holders of ~~Shares, in each case~~ Shares as and to the extent required by applicable ~~Law~~Federal securities laws. ~~Parent and Sub~~Parent, ~~on the one hand,~~ Sub and the ~~Company, on the other hand, agree~~ Company each agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Sub further 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 ~~Law~~Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to their filing with the ~~SEC, and Parent and Sub shall give due consideration~~ SEC or dissemination to ~~all reasonable additions, deletions or modifications thereto suggested by~~ the ~~Company and its legal counsel~~stockholders of the Company. ~~In addition,~~ Parent and Sub agree to provide the Company ~~with~~ and its counsel any ~~comments, whether written or oral, that~~ comments Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such comments~~, and any written or oral responses thereto, and the~~ . The Company shall ~~have the right to consult~~ cooperate with ~~Parent, Sub~~ Parent and ~~their~~ its counsel ~~prior to~~ in responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its legal counsel with respect thereto. (cf) Parent shall provide or cause to be provided to Sub ~~promptly following~~ on a timely basis the ~~expiration of the Offer or any subsequent extension thereof, as applicable, all~~ funds necessary to ~~promptly~~ accept for payment, and pay ~~in full in cash the aggregate Offer Price for those~~ for, any Shares that ~~have been validly tendered and not withdrawn pursuant to the Offer and that~~ Sub is becomes obligated to accept for ~~payment~~ payment, and pay for, pursuant to the ~~Offer and permitted to accept for payment under applicable Law~~Offer. (g) Parent or Sub shall engage an information agent in connection with the Offer.

Appears in 1 contract

Samples: Merger Agreement (Nippon Telegraph & Telephone Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 8.01 and none of the events ~~described~~ set forth in ~~any of paragraphs (a) or (b) of~~ Annex ~~III~~ A hereto shall have occurred ~~and~~ or be ~~continuing (unless waived by Parent or Sub)~~existing, ~~Sub shall~~Purchaser shall commence, and Parent shall cause ~~Sub to~~Purchaser to commence, ~~commence (~~within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act, the ~~“Exchange Act”)) the~~ Offer ~~within ten (10) business days following~~ 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 ~~obligations~~ obligation of ~~Sub~~ Purchaser to accept for payment and to pay for ~~any~~ Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction ~~or waiver by Parent or Sub~~ of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex ~~III~~ A hereto. ~~Parent~~ Purchaser expressly reserves the right to waive any of such ~~conditions~~condition, to increase the ~~Offer Price~~ Per Share Amount and to make any other changes in the terms and conditions of the Offer; ~~provided~~PROVIDED, ~~however~~HOWEVER, ~~that Sub shall not~~that, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing~~Special Committee, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, Purchaser will not (i) decrease the Per Share Amount, (ii)reduce the maximum number of Shares to be purchased in the Offer, (iii) change the form of the consideration payable in the Offer, (iv)add to, modify or supplement the conditions to the Offer set forth in Annex A hereto, (v) extend the expiration date of the Offer beyond the ~~initial~~ twentieth business day following commencement thereof; PROVIDED, HOWEVER, Purchaser may extend the expiration date ifof the Offer, at (A) if the conditions to the Offer set forth in Annex A have not been satisfied, (B) to the extent necessary to respond to comments on the Offer Documents (as defined below) from the Securities and Exchange Commission (the "SEC") and (C) on one additional occasion, for a period not to exceed ten business days or (vi)make any ~~scheduled (~~other change in the terms or ~~extended)~~ conditions of the Offer which is materially adverse to the 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. Subject to the terms and conditions of the Offer, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay, as promptly as practicable after expiration of the Offer, ~~any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall~~ for all Shares validly tendered and not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Actwithdrawn. (b) On the date of commencement of the Offer, Parent and ~~Sub~~ Purchaser shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act~~ SEC (~~“Regulation M-A”),~~ i) a Tender Offer Statement on Schedule TO 14D-1, including all exhibits thereto (together with all amendments and supplements thereto, the "SCHEDULE 14D-1"), with respect to the Offer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, including all exhibits thereto (together with all ~~amendments,~~ amendments and supplements ~~and exhibits~~ thereto, the ~~“Schedule TO”~~"SCHEDULE 13E-3"), with respect to the Offer and the other transactions contemplated hereby (the "TRANSACTIONS"). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO ~~shall include~~PURCHASE") and the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, ~~as exhibits~~the Schedule 13E-3, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively~~such other documents, together with ~~any~~ all supplements and amendments ~~and supplements~~ thereto, being referred to herein collectively as the ~~“Offer Documents”~~"OFFER DOCUMENTS"). ~~Subject to Section 5.2~~Parent, Purchaser and the Company ~~hereby consents to the inclusion~~ shall correct promptly any information provided by any of them for use in the Offer Documents ~~of the recommendation~~ which shall become false or misleading, and ~~the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act.~~ Parent and ~~Sub agree to~~ Purchaser shall take all ~~commercially reasonable~~ 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~~and the other Offer Documents, ~~subject~~ as so corrected, to ~~the Company’s compliance with Section 1.2(c),~~ be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~Law (as defined below). ~~Parent and Sub, on the one hand, and the~~ The Company, on the ~~other hand, agree to promptly correct any information provided by it for use in the Offer Documents if~~ Special Committee and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company their respective counsel shall be given a the reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to the filing thereof with the SEC~~, and~~ . Parent and ~~Sub~~ Purchaser shall ~~give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and its legal counsel. In addition, Parent and Sub agree to~~ provide the ~~Company~~ Company, the Special Committee and their respective counsel with a copy of any ~~comments, whether~~ written comments or ~~oral, that Parent, Sub~~ telephonic notification of any oral comments Parent or ~~their counsel~~ Purchaser may receive from ~~time to time prior~~ the SEC or its staff with respect to the ~~expiration~~ Offer Documents promptly after the receipt thereof. Parent and its counsel shall provide the Company, the Special Committee and their respective counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Offer Documents, the Transactions or ~~termination of~~ this Agreement. In the ~~Offer,~~ event that the Parent or the Purchaser receives any comments from the SEC or its staff with respect to the Offer Documents, each shall use its reasonable best efforts to respond 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~~ take all other actions necessary to ~~all reasonable views and comments of~~ resolve the ~~Company and its legal counsel with respect thereto~~issues raised therein. (c) Parent shall provide or cause to be provided to ~~Sub promptly following~~ Purchaser on a timely basis the ~~expiration of the Offer or any subsequent extension thereof, as applicable, all~~ funds necessary to ~~promptly~~ accept for payment, and pay ~~in full in cash the aggregate Offer Price for those~~ for, any Shares that ~~have been validly tendered and not withdrawn pursuant to the Offer and that Sub is~~ Purchaser becomes obligated to accept for ~~payment~~ payment, and pay for, pursuant to the ~~Offer and permitted to accept for payment under applicable Law~~Offer.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Viacom Inc)

The Offer. (a) ~~Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none~~ On the date of commencement of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall, and Parent shall cause Sub to, commence~~ Offer (within the meaning 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 within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. (b) On the date of commencement of the OfferGuarantor, Parent and Merger Sub ~~shall file~~ filed with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The~~ ) that incorporated by reference the Offer to Purchase and form of the related letter of transmittal, form of summary advertisement and such other customary documents included therein (the Schedule ~~TO shall include, as exhibits~~TO, the Offer to Purchase and ~~a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto~~such other documents pursuant to which the Offer is being made, the “Offer Documents”). . (b) Subject to ~~Section 5.2~~the conditions of this Agreement, as promptly as practicable but in no event later than three Business Days after the date hereof, Merger Sub shall, and Parent shall cause Merger Sub to, amend the offer to purchase (as so amended and supplemented, the ~~Company hereby consents~~ “Offer to ~~the inclusion in the Offer Documents of the recommendation~~ Purchase”) and the ~~approval of the Company Board of Directors referred to in Section 3.20(a). The~~ other Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of SharesDocuments, in each case in accordance with the terms of this Agreement, (as so amended and supplemented, the “Amended Offer Documents”), including to reflect the conditions set forth in Annex I (the “Offer Conditions”) and file with the SEC the Amended Offer Documents. (c) Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of the Company) and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in each case subject to extending the Offer as required by applicable Law; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than the Offer Conditions, (E) amend or modify any of the Offer Conditions or any of the terms of the Offer in a manner adverse to the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby, (F) waive or change the Minimum Condition (provided, that Merger Sub may, at its sole discretion prior to the expiration of the Offer, waive or change the Minimum Condition to remove the proviso in the definition of such term requiring that the calculation of the total outstanding voting power of the Shares be made on a fully-diluted basis; provided further, that Merger Sub (i) provides written notification of such determination to the Company and (ii) provides any notification or modification to the Amended Offer Documents with respect thereto, to the extent required by applicable Law, in each case at least five Business Days prior to 3 any scheduled Expiration Date) or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any Expiration Date, as extended pursuant to the terms of this Agreement), unless this Agreement is terminated in accordance with Article 8. Notwithstanding anything to the contrary in this Agreement, 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 Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement. (d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall initially be scheduled to expire at 11:59 p.m. (New York City time) on the date that is the later of (i) December 14, 2012 or (ii) the date that is five (5) Business Days following the date of filing with the SEC of the Amended Offer Documents (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”). (e) The Offer shall be extended from time to time as follows: (i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then prior to the then scheduled Expiration Date Merger Sub shall extend the Offer for one or more periods of not more than five (5) Business Days each (or such other number of Business Days as the parties may agree) and ending no later than the Outside Date in order to permit the satisfaction of such conditions (subject to the right of Merger Sub to waive any Offer Condition, other than the Minimum Condition (except as provided in Section 1.1(c)), in accordance with this Agreement); provided, that nothing in this Section 1.1(e)(i) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 8 hereof; and (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange LLC (the “NYSE”) or its staff, in each case applicable to the Offer, provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date. (f) Merger Sub may (and the Amended Offer Documents shall reserve the right of Merger Sub to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) of not fewer than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the Offer; provided, that Merger Sub shall offer a Subsequent Offering Period of three (3) Business Days at the request of the Company if, immediately following the expiration of the Offer, the Short Form Threshold has not been reached and cannot be reached through the immediate exercise of the Top-Up Option hereunder in accordance with its terms. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing. Parent and ~~Sub, on the one hand~~Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer. (g) 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 8. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, (ii) not acquire any Shares pursuant to the Offer and (iii) cause any depository acting on ~~the other hand, agree~~ behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered Shares to the registered holders thereof. (h) The Company shall cooperate fully in the preparation of the Amended Offer Documents to reflect the terms of this Agreement and the Company and its counsel shall be given a reasonable opportunity to review the Amended Offer Documents before they are filed with the SEC. Parent and Xxxxxx Sub agree that they shall cause the Amended Offer Documents and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Without limiting the generality of the foregoing, the Company will furnish to the Parent and Merger Sub the information relating to it required by the Exchange Act to be set forth in the Amended Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the Shares. Each of Parent and Merger Sub shall use its reasonable best efforts to resolve all SEC comments with respect to the Amended Offer Documents as promptly as reasonably practicable after receipt thereof. Each of Parent, Xxxxxx Sub and the Company agrees to correct any information provided by it for use in the Amended Offer Documents ~~if and to the extent that it~~ which shall have become false or ~~misleading in any material respect or as otherwise required by Law~~misleading. Each of Parent and Merger Sub ~~further agree~~ shall as soon as reasonably practicable notify the Company of the receipt of any comments from the SEC with respect to ~~take all steps necessary to cause~~ the Amended Offer Documents ~~as so corrected to be filed with~~ and any request by the SEC ~~and disseminated to holders of Shares, in each case as and~~ for any amendment to the ~~extent required by applicable Law~~Amended Offer Documents or for additional information and shall provide the Company with copies of all such comments and correspondence. ~~The~~ Prior to filing or mailing the Amended Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, each of Parent and Merger Sub shall provide the Company ~~shall be given~~ a reasonable opportunity to review and ~~comment~~ to propose comments on such document or response and shall, in good faith, consider and incorporate the ~~Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all~~ reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 ~~Company and its legal counsel with respect thereto~~Company. (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 1 contract

Samples: Merger Agreement

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1 and none of~~ 10.1, as promptly as practicable, but in no event later than November 15, 2012 (or such other date as the ~~events described~~ Parties may mutually agree to in ~~any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub~~writing), 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 (together with the rules and regulations promulgated thereunder, the “~~Exchange Act”)) the ~~Offer within ten (10) business days following the date hereof~~Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for ~~payment~~ payment, and to pay ~~for~~ for, any ~~Shares~~ shares of Company Common Stock validly tendered and not validly withdrawn ~~prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a)) shall be~~ are subject only to the ~~conditions set forth in Annex III hereto. Subject to the prior~~ satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement and the conditions set forth in Annex III hereto. Parent expressly reserves the right to waive any of such conditions, to increase the Offer Price and to make any other changes in the terms of the Offer; provided, however, that Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 A (the “~~Expiration~~ Offer Conditions”). The date on which Merger Sub commences the Offer is referred to herein as the “Offer Commencement Date”~~) except as set forth below, in each case without the prior written consent~~ . The Company agrees that no shares of ~~the~~ Company ~~(such consent to be authorized~~ Common Stock held by the Company ~~Board of Directors~~ or a duly authorized committee thereof). Notwithstanding the foregoing, but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of ~~the conditions set forth in Annex III hereto~~ its Subsidiaries (other than ~~the Minimum Condition~~any such shares held on behalf of third parties) ~~shall not~~ will be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation or interpretation of the United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable tendered pursuant to the Offer~~. In addition to the foregoing and excluded from any such limitations, Sub also may provide a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act~~. (b) On the ~~date of commencement of the Offer~~Offer Commencement Date, Parent and Merger Sub shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The Schedule TO~~ ) that shall ~~include~~include the summary term sheet required thereby and, as exhibits, the ~~Offer~~ offer to ~~Purchase and a~~ purchase, form of letter of ~~transmittal and~~ transmittal, form of notice of guaranteed delivery, summary advertisement and other ancillary documents pursuant to which the Offer will be made (collectively, together with any amendments ~~and~~ or supplements thereto, the “Offer Documents”); and (ii) cause the Offer Documents to be disseminated to holders of Shares as required by applicable Law. The Company shall promptly (and in no event later than three (3) Business Days following Merger Sub’s or Parent’s request) furnish to Parent and Merger Sub all information concerning the Company and its Subsidiaries or any of their respective Representatives that may be required by the Exchange Act and other applicable securities Laws or as reasonably requested by Parent or Merger Sub to be set forth in the Offer Documents. Subject to Section ~~5.2~~8.6, the Company hereby consents to the inclusion of the Company Recommendation in the Offer ~~Documents~~ Documents. Each of ~~the recommendation~~ Parent, Merger Sub and the ~~approval of the~~ Company ~~Board of Directors referred~~ agrees promptly to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Schedule TO and the Offer Documents if and to the extent that it such information shall have become (or shall have become known to be) false or misleading in any material ~~respect or as otherwise required by Law~~respect. Parent and Merger Sub ~~further agree to~~ shall take all steps reasonably necessary to amend or supplement the Schedule TO to correct such information and 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 ~~as and~~ to the extent required by applicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the Offer Documents (or any amendment ~~thereto~~ or supplement thereto), including the proposed final version thereof, before it any such document is filed with the ~~SEC~~SEC or disseminated to holders of Shares, and Parent and Merger Sub shall give ~~due~~ reasonable and good faith consideration to ~~all reasonable additions, deletions or modifications thereto suggested~~ any comments made by the Company and its ~~legal~~ counsel. ~~In addition,~~ Parent and Merger Sub ~~agree to~~ shall provide the Company and its counsel with (i) any ~~comments~~comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel or other representatives may receive from time to time ~~prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Schedule TO or Offer ~~Documents,~~ Documents promptly ~~upon~~ after receipt of ~~such~~ 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 Parent and Merger Sub shall give reasonable and good faith consideration), including by participating with Parent and Merger Sub or their counsel in any discussions or meetings with the SEC. (c) The Offer Conditions are for the sole benefit of Parent and Merger Sub and Parent and Merger Sub expressly reserve the right to 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 that, without the prior written consent of the Company, neither Parent nor Merger Sub shall: (i) waive or ~~oral responses thereto~~change the Minimum Condition or the Termination Condition; (ii) decrease the Offer Price; (iii) change the form of consideration to be paid in the Offer; (iv) decrease the number of Shares subject to the Offer; (v) terminate, extend or otherwise change the expiration date of the Offer, except as otherwise provided in this Agreement; (vi) provide any “subsequent offering period” with the meaning of Rule 14d-11 under the Exchange Act; or (vii) impose additional conditions to the Offer or otherwise amend, modify or supplement any of the Offer Conditions or the other terms of the Offer in any manner adverse to the holders of the Shares. (d) Unless extended as provided in this Agreement, the Offer shall expire at 11:59 p.m. New York time on the date that is twenty Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) after the Offer Commencement Date (the “Initial Offer Expiration Date”). If as of 11:59 p.m. New York time on the Initial Offer Expiration Date or any subsequent date as of which the Offer is scheduled to expire, (i) any of the Offer Conditions shall not have been satisfied or waived by Merger Sub, then, unless Parent and the Company otherwise agree, and subject to the rights and remedies of the Parties under this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to), extend the Offer for one or more consecutive increments of not more than five Business Days each, the length of each such period to be determined by Parent in its sole discretion (or for such longer period as Parent and the Company may mutually agree) until such Offer Condition(s) are satisfied or waived, or (ii) the Offer is required to be extended by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (“SEC”) or the staff thereof applicable to the Offer, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by such rule, regulation or interpretation or position; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to the immediately preceding clauses (i) or (ii) beyond the End Date unless Parent or Merger Sub is not then permitted to terminate this Agreement pursuant to Section 10.1(c), in which case Merger Sub shall be required to extend the Offer beyond the End Date. In addition, if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer beyond any then scheduled Offer Expiration Date (i) for one or more consecutive increments designated by the Company in its sole discretion (which designation shall be made by the Company in writing to Parent not later than the date that is one Business Day prior to the then scheduled Offer Expiration Date); provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this clause (i) beyond 5 p.m. (New York City time) on December 12, 2012 and (ii) if the Company has delivered a notice pursuant to clause (w) of the last sentence of Section 8.6(d) prior to the then scheduled Offer Expiration Date, three Business Days after such notice; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this clause (ii) more than once (the date on which the Offer finally expires taking into account any extensions pursuant to and in accordance with this Section 2.1(d) is referred to herein as the “Offer Expiration Date”). In addition, Merger Sub 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 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 (x) Parent and Merger Sub shall have waived the Financing Proceeds Condition, (y) all of the Offer Conditions other than the Financing Proceeds Condition have been satisfied or waived and (z) the Debt Financing (or any alternative financing contemplated by Section 8.11 (such alternative financing, “Alternative Financing”)) has not actually been received by Merger Sub or Parent, and the lenders party to the Debt Financing Commitment (or to the commitments with respect to any Alternative Financing (such commitments, “Alternative Financing Commitments”)) have not definitively and irrevocably confirmed in writing to Parent and Merger Sub that the Debt Financing (or Alternative Financing) in an amount sufficient (together with the Equity Financing and cash available to the Company) to consummate the Offer and the Merger will be available at the Offer Closing on the terms set forth in the Debt Financing Commitment (or Alternative Financing Commitments) and subject only to the satisfaction of the Offer Conditions (and contribution by Parent or Merger Sub of the proceeds of the Equity Financing). If (x) the Financing Proceeds Condition has been satisfied less than five Business Days prior to the then-scheduled expiration of the Offer (including the then-scheduled expiration date of the Offer) and (y) all of the other Offer Conditions have been satisfied or waived at the then scheduled expiration of the Offer, then Merger Sub and Parent shall have a one-time right to extend the Offer pursuant to this sentence and such extension shall be for a period of up to five Business Days. (e) Subject to the terms and conditions set forth in this Agreement and to the satisfaction, or waiver by Merger Sub, of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable (which shall, in any event, be no more than three Business Days) after the Offer Expiration Date, all Shares validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer (such acceptance, the “Offer Closing”, the time on which the Offer Closing occurs, the “Acceptance Time”, and the date on which the Offer Closing occurs, the “Offer Closing Date”). Parent shall provide, or cause to be provided, to Merger Sub on a timely basis the funds necessary to purchase all Shares that Merger Sub becomes obligated to purchase pursuant to the Offer. (f) The Offer may not be terminated prior to the Offer Expiration Date unless this Agreement is validly terminated in accordance with Section 10.1; provided, however, that if at any date on which the Offer is scheduled to expire, (i) the Marketing Period shall have ended and any Offer Condition (other than the Financing Proceeds Condition) shall not have been satisfied or waived and (ii) the Proxy Statement Clearance Date shall have occurred at least three Business Days prior to such scheduled expiration of the Offer, then (x) notwithstanding the provisions of subclause (i) of Section 2.1(d), Merger Sub may irrevocably and unconditionally terminate the Offer (provided that prior to so terminating the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, notify the Company in writing at least one Business Day in advance of such termination and the Company shall have a one-time right (exercisable in the ~~right~~ Company’s sole discretion) to ~~consult with Parent~~cause Merger Sub to extend, rather than terminate, the Offer for one consecutive increment of five Business Days, in which case Merger 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 communicationsshall, and Parent shall cause Merger Sub to, extend the Offer for such period) and (y) if the Financing Outside Date has occurred, the Company shall have the right, exercisable by delivering written notice to Parent and Merger Sub, to cause Merger Sub to, and upon receipt of such written notice, Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably and unconditionally terminate the Offer at the then-scheduled expiration date following the receipt of such notice sent by the Company. The termination of the Offer pursuant to the immediately preceding sentence is referred to in this Agreement as the “Offer Termination” and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date”. If the Offer Termination occurs, Merger Sub shall promptly (but in no event later than three Business Days after the Offer Termination Date) return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. The Parties hereto acknowledge and agree that the Offer Termination shall not give ~~due consideration~~ rise to ~~all reasonable views~~ a right of termination of this Agreement unless to the extent expressly provided for in Section 10.1 and ~~comments~~ that, absent such any termination of this Agreement, the obligations of the Parties hereunder other than those related to the Offer shall continue to remain in effect notwithstanding the Offer Termination, including those obligations with respect to the Merger. The Parties hereto also acknowledge and agree that the occurrence of the Offer Termination shall not limit or affect the right of the Company ~~and its legal counsel with respect thereto. (c) Parent shall provide or cause~~ to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares that have been validly tendered and not withdrawn terminate this Agreement 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~~Section 10.1(h).

Appears in 1 contract

Samples: Merger Agreement (Jda Software Group Inc)

The Offer. (a) Provided that this Agreement shall not --------- have been terminated in accordance with Section ~~8.1~~ 9.1 and ~~none~~ subject to the ----------- provisions of this Agreement, including the conditions to the Offer set forth in Exhibit A hereto, as promptly as practicable after the date of the ~~events described in any of paragraphs (a) or (b) of Annex III hereto have occurred and be continuing (unless waived~~ public announcement by Parent ~~or Sub)~~and the Company of this Agreement, Sub shall, and Parent shall cause Sub to, ~~commence (~~commence, within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act of 1934, as amended (together with the rules and regulations promulgated thereunder~~Act, the ~~“Exchange Act”))~~ Offer. The obligation of Sub to, and of Parent to cause Sub to, commence the Offer ~~within ten (10) business days following the date hereof. The obligations of Sub to~~ and accept for ~~payment~~ payment, and to pay ~~for~~ for, any Shares ~~validly~~ tendered ~~and not withdrawn prior~~ pursuant to the ~~expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject only to the conditions set forth in ~~Annex III hereto~~Exhibit A (the "Offer Conditions") (any one or more of which may be waived in --------- ---------------- whole or in part by Sub in its sole discretion, provided that, without the prior written consent of the Company, Sub shall not waive the Minimum Condition (as defined in Exhibit A)). ~~Subject~~ Sub expressly reserves the right to modify the terms of --------- the Offer, except that, without the prior written consent of the Company, Sub shall not (i) reduce the number of Shares sought in the Offer, (ii) decrease the price per Share, (iii) impose any conditions to the ~~prior satisfaction~~ Offer in addition to the Offer Conditions or ~~waiver~~ modify the Offer Conditions in a manner adverse to the holders of Shares (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in (b) below, extend the Offer, (v) change the form of consideration payable in the Offer (other than by adding consideration) or (vi) make any other change or modification in any of the terms of the Offer in any manner that is adverse to the holders of Shares. (b) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. Parent and Sub agree that Sub will not terminate the Offer between scheduled expiration dates (except in the event that this Agreement is terminated pursuant to Section 9.1) and that, in the event ----------- that Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due to the failure of one or ~~Sub~~ more of ~~conditions set forth in Annex III hereto~~the Offer Conditions, unless this Agreement shall have been terminated pursuant to Section 9.1, Sub ----------- shall, and Parent shall cause Sub to, ~~consummate~~ extend 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~~ such period or periods as shall be ~~made~~ determined 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 Sub until such ~~conditions, to increase~~ date as the Offer ~~Price and to make any other changes in the terms of the Offer~~Conditions have been satisfied or such later date as required by applicable law; provided, however, that nothing herein shall require Sub shall not, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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~~ Outside Date~~”) except as set forth below, in each case without the prior written consent of the Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)~~. Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1,~~ Sub ~~shall, upon the written request of the Company at least one business day before the then-scheduled expiration date, and~~ may, without the consent of the Company, (i) extend the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the~~ Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended ~~Expiration Date~~ expiration date of the ~~Minimum Condition is~~ Offer any of the Offer Conditions shall not ~~satisfied~~be satisfied or waived, ~~for up to two periods of ten~~ until such time as such conditions are satisfied or waived and (~~10) business days per extension or (iii~~ii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof applicable to the ~~Offer~~Offer or as might be required by the NYSE. ~~In addition to the foregoing and excluded from any such limitations,~~ Sub ~~also may~~ shall not provide for a “subsequent offering ~~period”~~ period in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of the Offer and this Agreement, Sub shall, and Parent shall cause Sub to, accept and pay for 16,730,502 Shares validly tendered and not withdrawn pursuant to the Offer that Sub is permitted to accept and exchange for under applicable law, as soon as practicable after the expiration of the Offer, and in any event in compliance with the obligations respecting prompt payment pursuant to Rule 14e- 1(c) under the Exchange Act; provided, however, that no such payment shall be made until after Parent and Sub shall have calculated how cash should be prorated if more than 16,730,502 Shares are validly tendered and not withdrawn pursuant to the Offer. If this Agreement is terminated by either Parent or Sub or by the Company, Sub shall, and Parent shall cause Sub to, promptly terminate the Offer. (bc) On the date of commencement of the Offer, Parent and Sub shall file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO (together with all supplements and amendments thereto, the "Schedule TO") with respect to the Offer ~~(together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase~~ ----------- and a ~~form of~~ related letter of ~~transmittal~~ transmittal, and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub ~~agree to take all commercially reasonable steps necessary to~~ shall cause the Offer Documents to be ~~filed with the SEC and, subject to the Company’s compliance with Section 1.2(c),~~ disseminated to holders of ~~Shares, in each case~~ Shares as and to the extent required by applicable ~~Law~~federal securities laws. Parent and ~~Sub~~Sub agree that they shall cause the Schedule TO, on the ~~one hand,~~ Offer to Purchase and all amendments or supplements thereto (which together constitute the "Offer Documents") to comply in all --------------- material respects with the Exchange Act and the ~~Company~~rules and regulations thereunder and other applicable laws. Parent, on Sub and the ~~other hand, agree~~ Company each agrees promptly to ~~promptly~~ correct any information provided by it for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable ~~Law~~federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on upon the ~~Schedule TO and any amendment thereto before it is filed~~ Offer Documents prior to their filing with the ~~SEC, and Parent and Sub shall give due consideration~~ SEC or dissemination to ~~all reasonable additions, deletions or modifications thereto suggested by~~ the ~~Company and its legal counsel~~Company's stockholders. ~~In addition,~~ Parent and Sub agree to provide the Company ~~with~~ and its counsel any ~~comments, whether written or oral, that~~ comments Parent, Sub or their counsel may receive ~~from time to time prior to the expiration or termination of the Offer,~~ from the SEC or its staff with respect to the Offer ~~Documents,~~ Documents promptly ~~upon~~ after the receipt of such ~~comments,~~ comments and ~~any written or oral responses thereto, and the Company shall have the right~~ to ~~consult~~ cooperate with Parent, Sub and their counsel prior to responding to any such comments, either in written or oral form. The Company and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Sub shall give due consideration to all reasonable views and comments of the Company and its ~~legal~~ counsel ~~with respect thereto~~in responding to such comments. (cd) Parent shall provide or cause to be provided to Sub ~~promptly following the expiration of the Offer or any subsequent extension thereof, as applicable,~~ on a timely basis all funds necessary to ~~promptly~~ accept for payment, and pay ~~in full in cash the aggregate Offer Price~~ for, any Shares accepted for ~~those Shares~~ payment that ~~have been~~ are validly tendered and not withdrawn pursuant to the Offer and that Sub is ~~obligated~~ permitted to accept for payment pursuant to the terms and conditions of the Offer and ~~permitted to accept for payment~~ under applicable ~~Law~~law.

Appears in 1 contract

Samples: Merger Agreement (Barrett Resources Corp)

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section ~~8.1~~ 11.01 and ~~none~~ nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the ~~events described~~ conditions set forth in ~~any of paragraphs~~ Annex I hereto (athe “Offer Conditions”) or (bother than the conditions set forth in clause (i) and subclause (D) of ~~Annex III hereto have occurred and be continuing~~ clause (~~unless waived by Parent or Sub~~ii)), ~~Sub~~ as promptly as practicable after the date hereof, but in no event later than 10 Business Days following the date of this Agreement, Acquisition Subsidiary shall, and Parent shall cause ~~Sub~~ it to, commence (within the meaning of Rule 14d-2 under the ~~Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)~~1000 Xxx) the Offer ~~within ten (10) business days following~~ to purchase for cash all of the ~~date hereof~~outstanding Shares at the Offer Price. The ~~obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the~~ Offer ~~(as it may be extended in accordance with requirements of this Section 1.1(a))~~ shall be subject ~~only~~ to the ~~conditions set forth in Annex III hereto. Subject to~~ Minimum Condition and the ~~prior satisfaction~~ satisfaction, or waiver by Parent or ~~Sub~~ Acquisition Subsidiary, of ~~conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate~~ the other Offer Conditions. The date on which Acquisition Subsidiary commences (within the meaning of Rule 14d-2 under the 1000 Xxx) 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~~ is referred to ~~the Offer. The Offer shall be made by means of an offer to purchase (~~as the “Offer ~~to Purchase~~Commencement Date”. (b) ~~that contains the terms set forth in this Agreement~~ Parent and ~~the conditions set forth in Annex III hereto. Parent~~ Acquisition Subsidiary expressly ~~reserves~~ reserve the right to waive any of ~~such conditions, to increase~~ the Offer ~~Price~~ Conditions and to make any ~~other changes~~ change in the terms of or conditions to the Offer, including raising the Offer Price; ~~provided~~provided that, ~~however~~without the prior written consent of the Company, ~~that Sub shall not, and~~ neither Parent ~~shall cause Sub not to,~~ nor Acquisition Subsidiary shall: (i) waive or change the Minimum Condition; (ii) decrease the Offer Price or (except pursuant to Section 2.01(e)(ii); (iii) change the form of consideration to be paid in ~~which any component of~~ the ~~Offer Price is payable,~~ Offer; (iv) decrease the number of Shares sought in the Offer~~, waive~~ ; (v) extend or otherwise change the ~~Minimum Condition~~ expiration date of the Offer except as otherwise provided herein; or (~~as defined in Annex III hereto)~~vi) impose additional Offer Conditions or otherwise amend, modify or ~~amend~~ supplement any of the ~~conditions set forth in Annex III hereto~~ Offer Conditions or ~~otherwise modify or amend any other term or condition~~ terms of the ~~Offer~~Offer in a manner that adversely affects, ~~in each case in any manner adverse~~ or would reasonably be expected to adversely affect, the holders of the ~~Company Common Stock~~Shares generally. (c) Unless extended as provided in this Agreement, ~~impose any conditions to~~ the Offer ~~that are not set forth~~ shall expire at midnight, New York City time, on ~~Annex III hereto, or extend~~ the ~~Offer beyond a~~ date that is ~~twenty~~thirty-~~one~~ four (2134) ~~business days after commencement of the Offer or the last extension~~ Business Days (~~as permitted in accordance with this Section 1.1), if any, of the Offer, whichever is later (the “Expiration Date”) except~~ calculated as set forth ~~below,~~ in ~~each case without~~ Rule 14d-1(g)(3) under the ~~prior written consent of~~ 1000 Xxx) after the ~~Company (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof)~~Offer Commencement Date. Notwithstanding the foregoing, ~~but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub~~ (A) Acquisition Subsidiary shall, ~~upon the written request of the Company at least one business day before the then-scheduled expiration date~~and Parent shall cause it to, and may, without the consent of the Company, (i) extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer, any of the conditions set forth in Annex III hereto (other than the Minimum Condition) shall not be satisfied or waived for up to two periods of not more than ten (10) business days per extension, (ii) from time to time, extend the Offer if at the scheduled or extended Expiration Date the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension or (iii) extend the Offer for any period required by any rule, ~~regulation~~ regulation, interpretation or ~~interpretation~~ position of the ~~United States Securities and Exchange Commission (“SEC”),~~ SEC or the staff ~~thereof,~~ thereof or Nasdaq applicable to the ~~Offer~~Offer or for any period otherwise required by Applicable Law and (B) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Acquisition Subsidiary shall, and Parent shall cause it to, extend the Offer for one or (as needed) more periods of five (5) Business Days each (or such shorter period as the Company agrees to or such longer period as the parties hereto may agree); provided, however, that in no event shall Acquisition Subsidiary be required to extend the Offer to a date later than the End Date. ~~In addition to~~ Notwithstanding the foregoing ~~and excluded from any such limitations~~clause (B), ~~Sub also may provide a “subsequent offering period”~~ if at the end of the initial expiration date (or the expiration date as extended in accordance with ~~Rule 14d-11 under~~ Section 2.01(f), if necessary), all of the ~~Exchange Act~~Offer Conditions are satisfied other than the Minimum Condition, then Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one additional period of five (5) Business Days, and if at the end of such five (5) Business Day period, the Minimum Condition continues to not be satisfied, Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one more period of five (5) Business Days; provided, however that if at the end of any expiration date as of which the Offer is scheduled to expire, (i) all of the Offer Conditions are satisfied other than the Minimum Condition and (ii) an Acquisition Proposal shall have been publicly announced or a tender offer or exchange offer shall have been commenced by a Third Party (and in each case not withdrawn), Acquisition Subsidiary shall be required to, and Parent shall cause it to, extend the Offer for one or (as needed) more periods of five (5) Business Days each (or such shorter period as the Company agrees to or such longer period as the parties hereto may agree) until the earlier of (i) February 28, 2014 and (ii) five (5) Business Day after the date such Acquisition Proposal or tender or exchange offer has been withdrawn, after which Acquisition Subsidiary shall not be required to extend the Offer ; provided further, that in no event shall Acquisition Subsidiary be required to extend the Offer to a date later than the End Date. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Section 2.01(c)), but only if this Agreement is validly terminated in accordance with Article 11. (bd) On Subject to the ~~date~~ terms and conditions set forth in this Agreement and to the satisfaction of ~~commencement~~ the Minimum Condition and the satisfaction or waiver of the other Offer Conditions, Acquisition Subsidiary shall, and Parent shall cause it to, promptly after the expiration of the Offer, ~~Parent~~ accept for payment and ~~Sub 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~~ pay for all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, as exhibits, the Offer to Purchase and a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the “Offer Documents”). Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material respects with all applicable provisions of the Exchange Act. Parent and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Parent and Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by Law. Parent and Sub further agree to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall be given a reasonable opportunity to review and comment on the Schedule TO and any amendment thereto before it is filed with the SEC, and Parent and Sub shall give due consideration to all reasonable additions, deletions or modifications thereto suggested by the Company and 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 the expiration or termination of the Offer, from the SEC or its staff with respect to the 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 Company and its legal counsel with respect thereto. (c) Parent shall provide or cause to be provided to Sub promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to promptly pay in full in cash the aggregate Offer Price for those Shares ~~that have been~~ validly tendered and not withdrawn pursuant to the Offer ~~and that Sub is obligated~~ (the time at which Shares are first accepted for payment under the Offer, the “Acceptance Time”). The obligation of Acquisition Subsidiary to accept for payment and pay for all Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the Minimum Condition and ~~permitted~~ the satisfaction or waiver of each of the other Offer Conditions (and shall not be subject to ~~accept~~ any other conditions). Promptly after the Acceptance Time, Acquisition Subsidiary shall pay the Offer Price for ~~payment~~ such Shares. (e) On the Adjustment Date, the Company shall deliver to Parent and Acquisition Subsidiary its calculation of (i) the Estimated World Wide Cash Amount and (ii) the World Wide Cash Amount Statement reflecting such Estimated World Wide Cash Amount, and reasonable supporting documentation for each of the foregoing. The Company and Parent shall work in good faith to resolve any disputes regarding the Company’s calculations of the Estimated World Wide Cash Amount and World Wide Cash Amount Statement within two (2) days following the date such calculations were received by Parent, and in the event such agreement is reached, shall within such two (2) day period mutually amend (if necessary) the World Wide Cash Amount Statement originally delivered by the Company to reflect any agreed-upon changes thereto. If the parties are not able to reach agreement within such two (2) day period, within one day after the end of the four (4) Business Day period starting the day after the Adjustment Date, the Company shall instead deliver to Parent and Acquisition Subsidiary its calculation of (i) the Actual World Wide Cash Amount and (ii) World Wide Cash Amount Statement reflecting such Actual World Wide Cash Amount, and reasonable supporting documentation for each of the foregoing. The Company and Parent shall work in good faith to resolve any disputes regarding the Company’s calculation of the Actual World Wide Cash Amount and World Wide Cash Amount Statement within two (2) days following the date such calculations were received by Parent. The Company, shall within such two (2) day period revise (if necessary) the World Wide Cash Amount Statement originally delivered by the Company to reflect any changes to the Actual World Wide Cash Amount and/or World Wide Cash Amount Statement that the Company in good faith determines appropriate (in each case taking into account any such disputes). For the avoidance of doubt, but without limiting the other provisions and definitions of this Agreement, the final determination of the Actual World Wide Cash Amount and the World Wide Cash Adjusted Amount shall be made solely by the Company in accordance with such provisions and definitions. Following final determination of the World Wide Cash Adjusted Amount set forth in the World Wide Cash Amount Statement (whether calculated using the Estimated World Wide Cash Amount or Actual World Wide Cash Amount, as determined as set forth above), the Offer Price shall be adjusted as follows in the circumstances set forth below: (i) if the World Wide Cash Adjusted Amount is greater than $9,350,000, the Offer Price shall be increased, so that from and after the Adjustment Date the Offer Price shall be equal to (x) $2.00, plus (y) an amount equal to the quotient (rounded to the nearest whole $0.01) of (A) the amount by which the World Wide Cash Adjusted Amount exceeds $9,300,000 divided by (B) the number of Shares issued and outstanding as of the Adjustment Date on a Fully Diluted basis. (ii) if the World Wide Cash Adjusted Amount is less than $9,250,000, the Offer Price shall be decreased, so that from and after the Adjustment Date the Offer Price shall be equal to (x) $2.00, less (y) an amount equal to the quotient (rounded to the nearest whole $0.01) of (A) the amount by which the World Wide Cash Adjusted Amount is less than $9,300,000 divided by (B) the number of Shares issued and outstanding as of the Adjustment Date on a Fully Diluted basis. For the avoidance of doubt, if the World Wide Cash Adjusted Amount is equal to or greater than $9,250,000 and less than or equal to $9,350,000, the Offer Price shall not be adjusted. (f) In the event the Offer Price is adjusted pursuant to Section 2.01(e), then Acquisition Subsidiary shall, and Parent shall cause it to, no later than 9:00 AM New York Time on the Business Day following final determination of the World Wide Cash Adjusted Amount as set forth in the World Wide Cash Amount Statement (as revised, if applicable) (x) provide notice of such adjustment to the Company’s stockholders pursuant to and in compliance with Rule 14e-1(b) under the 1934 Act and any other applicable ~~Law~~rules and regulations of the SEC or other Applicable Law and (y) to the extent that the date as of which the Offer is scheduled to expire is less than ten (10) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 1000 Xxx) following such notice, extend the Offer such that the expiration date is ten (10) Business Days following such notice. In the event the Offer Price is not adjusted pursuant to Section 2.01(e), then Acquisition Subsidiary shall, and Parent shall cause it to, no later than 9:00 AM New York Time on the Business Day following final determination of the World Wide Cash Adjusted Amount as set forth in the World Wide Cash Amount Statement (as revised, if applicable) (x) provide notice of the foregoing to the Company’s stockholders and (y) to the extent that the date as of which the Offer is scheduled to expire is less than five (5) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the 1000 Xxx) following such notice, extend the Offer such that the expiration date is five (5) Business Days following such notice.

Appears in 1 contract

Samples: Merger Agreement (Harris Interactive Inc)

The Offer. (a) Provided that this Agreement ~~shall~~ has not ~~have~~ been terminated in accordance with ~~Section 8.1 and none~~ Article VIII, as promptly as practicable after the date of this Agreement, but in no event more than ten Business Days after the ~~events described in any~~ date of ~~paragraphs~~ this Agreement, Merger Sub shall (~~a) or (b) of Annex III hereto have occurred and be continuing (unless waived by Parent or Sub), Sub shall,~~ and Parent shall cause Merger Sub to, ) commence (within the meaning of Rule 14d-2 under the ~~Securities~~ Exchange ~~Act of 1934~~Act) the Offer; provided, ~~as amended (together~~ however, that Merger Sub shall not be required to commence the Offer if the Company is not prepared to file the Schedule 14D‑9 with the ~~rules~~ SEC on the same day as, and ~~regulations promulgated thereunder~~substantially contemporaneously with, Merger Sub’s filing of the Offer Documents with the SEC. (b) Upon the terms and subject to the conditions set forth in this Agreement, including the prior satisfaction of the Minimum Condition (as defined in Annex I) and the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I (collectively, the “~~Exchange Act~~Offer Conditions”)) , Merger Sub shall (and Parent shall cause Merger Sub to), as promptly as practicable after the Offer within ten (10) business days following the date hereof. The obligations of Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer Expiration Date (as it may be extended in accordance with ~~requirements of~~ this Section ~~1.1(a~~1.1)) shall be subject only to the conditions set forth in Annex III hereto. Subject to the prior satisfaction or waiver by Parent or Sub of conditions set forth in Annex III hereto, Sub shall, and Parent shall cause Sub to, consummate the Offer in accordance with its terms and accept for ~~payment~~ payment, and promptly thereafter pay ~~for~~ for, all Shares validly tendered and not validly withdrawn ~~promptly following the acceptance of Shares for payment~~ pursuant to the Offer. . (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) ~~that contains~~ in accordance with the terms set forth in this ~~Agreement~~ Agreement, the Minimum Condition and the ~~conditions set forth in Annex III hereto~~other Offer Conditions. ~~Parent~~ Merger Sub expressly reserves the right to ~~waive any of such conditions, to~~ (i) increase the Offer ~~Price~~ Price, (ii) waive any Offer Condition other than the Minimum Condition, and to (iii) make any other changes in the terms and conditions of the ~~Offer~~Offer not inconsistent with the terms of this Agreement; provided, however, that ~~Sub shall not~~unless otherwise provided by this Agreement, and Parent shall cause Sub not to, decrease the Offer Price or change the form of consideration in which any component of the Offer Price is payable, decrease the number of Shares sought in the Offer, waive or change the Minimum Condition (as defined in Annex III hereto), modify or amend any of the conditions set forth in Annex 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 date that is 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 be authorized by~~ which the Company ~~Board~~ may withhold in its sole discretion), Merger Sub shall not (A) decrease the Offer Price, (B) change the form of ~~Directors or a duly authorized committee thereof). Notwithstanding~~ consideration payable in the ~~foregoing~~Offer, ~~but~~ (C) decrease the maximum number of Shares subject to the ~~parties’ respective rights~~ Offer; (D) impose conditions to ~~terminate~~ the Offer in addition to the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and Merger Sub may waive the Minimum Condition only with the prior written consent of the Company (which the Company may withhold in its sole discretion). The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with ~~Section 8.1~~Article VIII. (d) Unless extended pursuant to, and in accordance with, the terms of this Agreement, the Offer shall expire at midnight (New York City time) at the end of the day on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer has been extended beyond the Initial Expiration Date pursuant to, and in accordance with, this Agreement, the date and time to which the Offer has been so extended (such Initial Expiration Date, or such later date and time to which the Offer has been extended pursuant to, and in accordance with, this Agreement, the “Expiration Date”). (e) Merger Sub shall, ~~upon~~ and Parent shall cause Merger Sub to, extend 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,~~ Offer from time to time as follows: (i) ~~extend~~ if on the ~~Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the Offer~~applicable Expiration Date, any of the ~~conditions set forth in Annex III hereto~~ Offer Conditions (~~other than~~ including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub shall ~~not be satisfied or waived~~ extend the Offer for ~~up to two~~ successive periods of not more than ten Business Days each (~~10) business days per extension~~as determined by Merger Sub), or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) ~~from time to time~~Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) shall (A) require Merger Sub to, and without the Company’s prior written consent (which the Company may withhold in its sole discretion) Merger Sub shall not be permitted to, extend the Offer ~~if at~~ beyond the ~~scheduled or extended Expiration~~ End Date ~~the Minimum Condition is not satisfied, for up to two periods of ten (10) business days per extension~~ or (~~iii~~B) be deemed to impair, limit or otherwise restrict in any manner the right of the Parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Merger Sub shall extend the Offer ~~for~~ in any ~~period required by any rule~~manner other than pursuant to, ~~regulation or interpretation~~ and in accordance with, the provisions of this Section 1.1(e) without the prior written consent of the ~~United States Securities and Exchange Commission~~ Company (~~“SEC”~~which the Company may withhold in its sole discretion). (f) The Offer Price shall be adjusted proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Shares occurring on or after the ~~staff thereof~~date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement. (g) Neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms hereof. If this Agreement is terminated in accordance with the terms hereof, then Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any Shares pursuant to the Offer~~. In addition~~ , and shall cause any depository acting on behalf of Merger Sub to ~~the foregoing and excluded from any such limitations~~return, ~~Sub also may provide a “subsequent offering period”~~ in accordance with ~~Rule 14d-11 under~~ applicable Law, all tendered Shares to the ~~Exchange Act~~registered holders thereof. (bh) On As promptly as practicable on the date of commencement of the ~~Offer~~Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the ~~SEC, pursuant to Regulation M-A under the Exchange Act (“Regulation M-A”),~~ SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all ~~amendments,~~ amendments and supplements thereto and including exhibits thereto, the “Schedule TO”~~). The Schedule TO~~ ) that shall ~~include, as exhibits,~~ contain or incorporate by reference the Offer to Purchase and a form of the related letter of transmittal and summary ~~advertisement~~ advertisement, if any, and any other ancillary Offer documents and instruments pursuant to which the Offer shall be made, and (ii) cause the Offer to Purchase and related documents to be disseminated to all holders of Shares. Parent and Merger Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (collectively~~, together with any amendments and supplements thereto~~, the “Offer Documents”~~). Subject~~ ) filed by either Parent or Merger Sub with the SEC to ~~Section 5.2~~comply, the Company hereby consents to the inclusion in the Offer Documents of the recommendation and the approval of the Company Board of Directors referred to in Section 3.20(a). The Offer Documents will comply in all material ~~respects~~ respects, with ~~all applicable provisions of~~ the Exchange ~~Act. Parent~~ Act and Sub agree to take all commercially reasonable steps necessary to cause the Offer Documents to be filed with the SEC and, subject to the Company’s compliance with Section 1.2(c), disseminated to holders of Shares, in each case as and to the extent required by other applicable Law. ~~Parent and Sub~~Each of Parent, ~~on the one hand,~~ Merger Sub and the ~~Company, on the other hand, agree to~~ Company shall promptly correct any information provided by it or any of its Representatives for use in the Offer Documents if and to the extent that it such information shall have become false or misleading in any material ~~respect or as otherwise required by Law.~~ respect, and shall supplement the information contained in the Offer Documents to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub further ~~agree~~ shall use their best efforts to ~~take all steps necessary to~~ promptly cause the Offer Documents as so corrected or supplemented to be filed with the SEC and to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. The Company shall promptly furnish or otherwise make available in writing to Parent and Merger Sub or Parent’s legal counsel all information concerning the Company and the Company’s stockholders that is required by applicable Law or is reasonably requested by Parent to be included in the Offer Documents. The Company and its legal counsel shall be given a reasonable opportunity to review and comment on the ~~Schedule TO and any amendment thereto before it is filed with the SEC~~Offer Documents, and Parent and Merger Sub shall ~~give due consideration to all~~ incorporate into the Offer Documents any reasonable ~~additions, deletions or modifications thereto suggested by~~ comments received from the Company ~~and~~ or its legal counsel, prior to the filing thereof with the SEC. ~~In addition,~~ Parent and Merger Sub agree to provide the Company and its counsel with any ~~comments, whether written or oral, that~~ comments Parent, Merger Sub or their counsel may receive from ~~time to time prior~~ the SEC or its staff with respect to the ~~expiration or termination~~ Offer Documents promptly after receipt of such comments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer. The Company and its legal counsel shall be given reasonable opportunity to review and comment on any proposed responses to any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the 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 Merger Sub shall ~~give due consideration~~ incorporate into such responses any reasonable comments received from the Company or its legal counsel, prior to ~~all reasonable views~~ the furnishing of such responses to the SEC. Parent and ~~comments of~~ Merger Sub shall provide the Company and its legal counsel with ~~respect thereto~~reasonable opportunity to participate in any discussions or meetings with the SEC or its staff. (ci) Parent shall ~~provide or~~ cause to be provided to Merger Sub ~~promptly following the expiration~~ on a timely basis all 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~~ purchase any Shares that ~~have been validly tendered and not withdrawn~~ Merger Sub becomes obligated to purchase pursuant to the ~~Offer~~ Offer, and ~~that~~ shall cause Merger Sub ~~is obligated~~ to ~~accept for payment pursuant to the Offer and permitted to accept for payment~~ perform, on a timely basis, all of Merger Sub’s obligations under ~~applicable Law~~this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Cogentix Medical Inc /De/)

Common use of The Offer Clause in Contracts