The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law. (b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company. (c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Information Resources Inc), Merger Agreement (Information Resources Inc), Merger Agreement (Information Resources Inc)
The Offer. (a) Subject Parent shall not, and shall cause Sub not to, commence (within the meaning of Rule 14d-2(a) of the ▇▇▇▇ ▇▇▇) the Offer prior to the conditions of this Agreement and provided date that is 14 days after the date hereof. Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 10.01, Parent shall cause Sub to, and none Sub shall, commence (within the meaning of Rule 14d-2(a) of the events set forth in paragraphs (a▇▇▇▇ ▇▇▇) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable after such date (but in no event later than ten business days after (10) Business Days following such date or such later date as the date of the public announcement of this Agreement, Parent and Merger parties may mutually agree in writing). The Sub shall commence the Offer within the meaning of the be obligated to accept for payment and to, subject to any applicable rules and regulations of the Securities SEC, including Rule 14e-1(c) promulgated under the 1934 Act (relating to Sub’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for any Shares validly tendered and Exchange Commission not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with this Agreement), subject to the condition that there shall be validly tendered (excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then beneficially owned by Parent and its Affiliates, represents at least a majority of the total number of Shares then outstanding on a Fully Diluted Basis (the "SEC")“Minimum Condition”) and to the other conditions set forth in Annex I (together with the Minimum Condition, the “Offer Conditions”) and to no other conditions. Subject to the prior satisfaction or waiver (except for the Minimum Condition) of the Offer Conditions, promptly after the later of (i) the earliest date as of which Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Sub, Sub shall (and Parent shall cause Sub to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) in compliance with Rule 14e-1(c) of the 1934 Act for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligations obligation of Sub (and of Parent and Merger Sub to cause Sub) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver (except for the Minimum Condition) by Parent or Sub, of each of the Offer Conditions. The Company agrees that no Shares held by the Company or any shares of Company Common Stock its Subsidiaries will be tendered pursuant to the Offer are subject Offer.
(b) Sub expressly reserves the right to waive (except for the conditions set forth in Exhibit A. The initial expiration date Minimum Condition) any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior written consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (i) no change may be made that changes the form of consideration to be paid, or decreases the Offer Price or the number of Shares sought in the Offer, (ii) no change may be made that amends or adds to the Offer Conditions or amends any other term of the Offer, in each case in any manner that is adverse to the shareholders of the Company, and except for any change or amendment that is required by Law or any waiver of any Offer Condition (other than the Minimum Condition), (iii) the expiration date shall not be extended except as otherwise provided herein, and (iv) Sub shall not terminate the 25th business day following Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 10.01.
(c) Unless extended as provided in this Agreement, the Offer shall initially expire at 12:00 midnight, New York City time on the date (the “Initial Expiration Time”) that is twenty (20) Business Days after the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established determined pursuant to an authorized extension of Rule 14d-1(g)(3) and Rule 14e-1(a) under the Offer as so extended, shall also be defined herein as an "Expiration Date"1934 Act). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger (i) Sub may shall (but shall not be obligated to), without or at the consent request of the Company and in its sole and absolute discretionCompany, (AParent shall cause Sub to) from time to time extend the Offer ifOffer, if at the scheduled Initial Expiration Date, Time or any of the conditions of extension thereof the Offer Conditions shall not have been satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived until such time (except for the Minimum Condition), for successive extension periods of not more than ten (10) Business Days each (except as such conditions are satisfied or waived required by Law) in order to permit the extent permitted by this Agreement; satisfaction of the Offer Conditions and (Bii) Sub shall extend the Offer for any period required by any Law or by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof or the Nasdaq Global Market applicable to the Offer; or (C) provided that in no event shall Sub be required to extend the Offer for beyond the End Date. Following expiration of the Offer, Sub may, in its sole discretion, provide a "subsequent offering period" period (as provided by “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares 1934 Act if, as of the Company Common Stock. On expiration of the terms and subject to the conditions to Offer, all of the Offer that are set forth in this AgreementConditions have been satisfied or waived, promptly after the Expiration Date, either Parent or Merger Sub but there shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock not have been validly tendered and not withdrawn pursuant to the Offer that number of Shares necessary to permit the Merger to be effected without a meeting of the Company’s shareholders in accordance with the MBCA. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent and Merger Sub are permitted to shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, including any Subsequent Offering Period, all Shares (i) validly tendered and not withdrawn pursuant to the Offer and (ii) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for under payment, the “Acceptance 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 thereof in cash, subject to reduction for any applicable lawwithholding Taxes payable in respect thereof in accordance with Section 2.07.
(bd) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which shall contain include, as exhibits, an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and transmittal, a summary advertisement (such Schedule TO and the other ancillary documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any exhibits, amendments or supplements or amendments thereto, the "“Offer Documents"”), and (ii) to the extent required by applicable U.S. securities Laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent and Sub agrees that it shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law. Each of Parent, Merger Sub and the Company shall agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Parent and Sub and the Company shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to promptly be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Law. The Company shall furnish or deemed advisable under applicable federal securities laws. Each otherwise make available to Parent and Sub and their legal counsel all information concerning the Company’s shareholders, including a list, as of the parties hereto most recent practicable date, of the stockholders of the Company, mailing labels and any available listing or computer files containing the names and addresses of all record and beneficial holders of the Shares, and a list of security positions of Shares held in stock depositories that Parent or Sub may reasonably request in connection with any action contemplated by this Section 1.01(d), including communicating the Offer to the record and beneficial holders of the Shares; provided that, except as required by Law or in connection with steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent and Sub shall keep confidential and not disclose such information, as required by the Confidentiality Agreement, shall use all reasonable efforts to have such information only in connection with the Registration Statement declared effective under Offer and the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as Merger and, if this Agreement shall be required for the issuance of the CVR Certificates pursuant terminated, shall, upon request, deliver to the OfferCompany or destroy all copies of such information then in their possession or control in accordance with the Confidentiality Agreement. Following the time the Registration Statement is declared effective, the The Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger SubSub shall give reasonable and good faith consideration to all reasonable additions, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to deletions or changes thereto suggested by the Company and its counsel, or legal counsel that Parent reasonably determines to be appropriate. Parent and Merger Sub agree to provide the Company and their counsel, respectively, in writing its counsel with any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments, and the Company shall have the right to consult with the Company and its counselParent, or Parent and Merger Sub and their counsel, respectively, prior to counsel before responding to any such comments. The Company will advise , and Parent and Merger Sub promptly after it receives notice that the Registration Statement shall give reasonable and any supplement or amendment that has been filed have become effective, good faith consideration to each response to those views and comments of the issuance Company and its legal counsel related thereto that Parent reasonably determines to be appropriate. Each of Parent and Sub shall respond promptly to any stop order, or comments of the suspension of the qualification of the CVR Certificates issuable in connection SEC or its staff with respect to the Offer for offering Documents or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(ce) Parent shall provide or cause to be provided to Merger Sub on a timely basis as promptly as practicable following the expiration of the Offer and any Subsequent Offering Period, as applicable, all funds necessary to purchase any shares of Company Common Stock pay for those Shares that Merger Sub becomes obligated to purchase have been validly tendered and not withdrawn pursuant to the OfferOffer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Mueller Industries Inc), Merger Agreement (Tecumseh Products Co), Merger Agreement (Tecumseh Products Co)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01, Purchaser shall, and none Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2(a) of the events set forth in paragraphs (a) through (e) or (h) Securities Exchange Act of Exhibit A hereto shall have occurred or be existing1934, as amended (the “Exchange Act”)) the Offer promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning but in any event not later than June 1, 2006. The obligation of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub Purchaser to accept for payment, and pay for, any shares of Company Common Stock payment Shares tendered pursuant to the Offer are shall be subject only to (i) the condition (the “Minimum Condition”) that at least the number of Shares that, when added to Shares then owned by Parent and its direct and indirect wholly owned subsidiaries and affiliates, shall constitute at least ninety percent (90%) of the then outstanding Shares shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of each of the other conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")attached Annex I hereto. Parent and Merger Sub Purchaser expressly reserve reserves the right to waive any condition such conditions, to increase the Offer or modify Price, and to make any other changes in the terms of the Offer, except that, ; provided that without the prior written consent of the Company, Merger Sub the Purchaser shall not, and Parent shall cause Purchaser not (i) reduce the number of shares of Company Common Stock subject to the Offerto, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a)Condition, extend the OfferOffer except as expressly provided below, (v) decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose conditions to the Offer in addition to those set forth in Annex I, or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common Stockany Shares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Purchaser may, without the prior consent of the Company and in its sole and absolute discretionCompany, prior to the termination of this Agreement, (Ax) from time to time extend the Offer for an aggregate period of not more than 10 business days beyond the scheduled expiration date, which initially shall be 20 business days following the commencement of the Offer (the “Initial Expiration Date”), if, at any scheduled expiration of the scheduled Expiration DateOffer, any of the conditions of to Purchaser’s obligations to accept the Offer Shares for payment shall not have been be satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (By) extend the Offer for any period required by any rule, regulation, or interpretation or position of the SEC Securities and Exchange Commission (the “SEC”), or the staff thereof, applicable to the Offer; , or (Cz) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Actone or more times) for a an aggregate period of three to twenty not more than 10 business days in order to acquire at least 90% beyond the latest applicable date that would otherwise be permitted under clause (x) or (y) of the outstanding shares this sentence, if, as of the Company Common Stock. On the terms and subject to such date, all of the conditions to Purchaser’s obligations to accept the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept Shares for payment and purchaseare satisfied or waived, as promptly as practicable after but the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares number of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that totals less than ninety percent (90%) of the outstanding Shares (including Shares already owned by Parent and Merger Sub are its direct and indirect wholly owned subsidiaries and affiliates). In addition, (1) if, on the Initial Expiration Date, the sole condition remaining unsatisfied is the failure of the waiting period under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), to have expired or been terminated, then Purchaser shall, without the prior written consent of the Company, extend the Offer from time to time until the fifth business day after expiration or termination of the applicable waiting period under the HSR Act or (2) if, on the Initial Expiration Date, the sole condition remaining unsatisfied is the condition set forth in paragraph (g) of Annex I, the Purchaser may, for so long as the Company is using its commercially reasonable efforts to cure such breach, extend the Offer from time to time until five business days after such breach is cured, provided that Purchaser shall not be required pursuant to this clause (2) to extend the Offer beyond 30 calendar days after the Initial Expiration Date. The Company agrees that no Shares held by the Company or any subsidiary of the Company will be tendered pursuant to the Offer. Subject to the terms of the Offer and this Agreement and the satisfaction or waiver (to the extent permitted by this Agreement) of all the conditions to the Offer, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for under applicable lawall Shares validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer. Each of the Parent and the Purchaser shall use its commercially reasonable efforts to avoid the occurrence of any Event specified in Annex I or to cure any such Event that shall have occurred.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company Parent shall cause the CVR Trust (as defined in Section 5.16 (a)) Purchaser to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, Offer is commenced a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "“Offer Documents"”), which shall contain (as an exhibit thereto) the Purchaser’s Offer to Purchase (the “Offer to Purchase”) which shall be mailed to the holders of Shares with respect to the Offer. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the The Offer Documents if and to will comply in all material respects with the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue provisions of a material misstatementapplicable federal securities laws and, material omission or otherwise), and each of Parent, Merger Sub and on the Company 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 date filed with the SEC and on the Offer Documents as so amended date first published, sent, or supplemented to be disseminated given to the Company's ’s stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing not contain any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by the party that discovers such Parent or the Purchaser with respect to information shall promptly notify supplied by or on behalf of the Company specifically for inclusion or incorporation by reference in the Offer Documents. Each of the Parent and the Purchaser, on the one hand, and the Company, on the other party hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and an appropriate amendment to the extent that it shall have become false or supplement describing such information shall misleading in any material respect, and Purchaser further agrees to take all steps necessary to cause the Offer Documents as so corrected to be promptly filed with the SEC andand to be disseminated to stockholders of the Company, in each case as and to the extent required by applicable law, disseminated federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the stockholders of Offer Documents (including any amendments or supplements thereto) prior to such documents being filed with the CompanySEC.
(c) Parent, Purchaser, and the Company agree that if all of the conditions to the Offer other than the Minimum Condition have been satisfied as of the expiration date of the Offer (as such expiration date may have been extended in accordance with Section 1.01(a)) and Purchaser elects not to waive the Minimum Condition, then Parent and Purchaser shall terminate the Offer (or otherwise permit the Offer to expire) and the Company shall solicit the approval of its stockholders for a merger (the “Cash Merger”) of the Company with Purchaser in accordance with Article II, and the Cash Merger shall be governed by the other provisions of this Agreement relating to the Merger, Effective Time, Proxy Statement, Merger Price, Closing, and like terms, all of which shall apply to the Cash Merger, and in such case each issued and outstanding Share, Option, and Warrant will be treated in accordance with Article II and Article III. If the Offer is terminated and a Cash Merger is required pursuant to this Section 1.01(c), (i) the Company and Parent shall provide promptly undertake the actions contemplated by Section 2.10 as if the Purchaser had accepted for payment and paid for Shares in the Offer; (ii) the obligations of the Parent, the Purchaser, and the Company to effect the Cash Merger shall be subject to the satisfaction or cause waiver of the conditions set forth in Annex I hereto; and (iii) each Party shall continue to have the obligations set forth in Article VI and to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant subject to the Offerconditions set forth in Article VII with respect to the Cash Merger.
Appears in 3 contracts
Sources: Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Acquisition CORP)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII Eight hereof and none of the events set forth in paragraphs Annex I hereto (athe “Tender Offer Conditions”) through (e) or (h) of Exhibit A hereto shall have occurred or be existingoccurred, as promptly as reasonably practicable but practicable, and in no any event later than within ten business days after the date of the public announcement of this Agreement(10) calendar days, Parent and Merger Sub shall cause the Purchaser to commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all outstanding Shares at the Offer Price, shall, upon commencement of the Offer but after affording the Company a reasonable opportunity to review and comment thereon, file Schedule TO and all other necessary documents with the Securities and Exchange Commission (the "“SEC"”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligations obligation of Parent and Merger Sub the Purchaser to accept for payment, and payment or pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are will be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A. The initial expiration date of Annex I hereto.
(b) Without the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub the Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce decrease the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common StockShares. Notwithstanding The Offer shall remain open until the foregoing, Merger Sub may date that is twenty (but shall not be obligated to20) 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”), without unless the consent Purchaser shall have extended the period of time for which the Company Offer is open pursuant to, and in its sole 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 absolute discretiondate as the Offer, (A) from time to time extend as so extended, may expire; provided, however, that the Offer ifPurchaser may provide a subsequent offering period after the Expiration Date, in accordance with Rule 14d-ll under the Exchange Act. If at the scheduled any Expiration Date, any of the conditions of the Tender Offer shall Conditions is not have been satisfied or waived until such by the Purchaser, the Purchaser may extend the Offer from time as such conditions are satisfied to time; provided, however, that, on the scheduled expiration date of the Offer, (i) if the waiting period under the HSR Act or waived under any material applicable foreign statutes or regulations applicable to the extent permitted by this Agreement; Merger shall have not expired or been terminated, the Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations, (ii) if any of the conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, the Purchaser shall extend the Offer from time to time until the earlier of (A) five (5) Business Days after the time such condition or conditions shall no longer exist or (B) extend such time at which the Offer for any period required by any rule, regulation, interpretation matters described in such paragraphs (a) or position of the SEC applicable to the Offer(b) shall have become final and nonappealable; or (Ciii) extend if all of the Tender Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least Conditions are satisfied and more than 50% but less than 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date Shares on which Parent or Merger Sub a fully diluted basis (excluding Options (as the case may bedefined herein) first accepts shares which are not exercisable for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock 60 days) have been validly tendered and not withdrawn in the Offer, the Purchaser shall have the right, in its sole discretion, to extend the Offer from time to time up to a maximum of ten (10) additional Business Days in the aggregate. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, the Purchaser will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably soon as practicable but in no event later than ten business days after the such expiration date of the public announcement Offer. Without the prior written consent of this Agreementthe Company, the Company Purchaser shall cause not accept for payment or pay for any Shares in the CVR Trust Offer if, as a result, Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Condition (as defined in Section 5.16 Annex I hereto).
(a)c) to file Parent and the Purchaser represent that the Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offerfirst published, Parent and Merger Sub shall file with the SEC, and cause to be disseminated sent or given to the Company's ’s stockholders, as 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 extent required statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by applicable federal securities laws, a Tender Offer Statement on Schedule TO Parent or the Purchaser with respect to information supplied by the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which Company in writing for inclusion in the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to stockholders of the Company's stockholders, in each case case, as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Sybron Dental Specialties Inc), Merger Agreement (Danaher Corp /De/), Merger Agreement (Danaher Corp /De/)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs Annex II hereto (athe "Tender Offer Conditions") through (e) or (h) of Exhibit A hereto shall have occurred or be existingoccurred, as promptly as reasonably practicable but in no event later than ten the fifth business days after day from the date of the public announcement of this Agreement, Parent and Merger Sub Crane shall cause the Purchaser to commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act")) an offer to purchase all outstanding shares of Company Common Stock, together with associated Rights (all references herein to shares of Company Common Stock in the context of the Offer being deemed to include such Rights) at the Per Share Price, shall, after affording the Company a reasonable opportunity to review and comment thereon, file all necessary documents with the Securities and Exchange Commission (the "SEC")) in connection with the Offer (the "Offer Documents") and shall consummate the Offer, subject to the terms and conditions thereof. The obligations obligation of Parent and Merger Sub the Purchaser to accept for payment, and payment or pay for, for any shares of Company Common Stock tendered pursuant to the Offer are will be subject only to the satisfaction of the conditions set forth in Exhibit A. The initial expiration date of Annex II hereto.
(b) Without the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub the Purchaser shall not (i) reduce decrease the Offer price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock subject sought to be purchased in the Offer, (ii) reduce the Offer Price impose additional conditions to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of shares of Company Common Stock. Notwithstanding The Offer shall remain open until the foregoing, Merger Sub may date that is 20 business days (but shall not be obligated toas such term is defined in Rule 14d-1(c)(6) under the Exchange Act) after the commencement of the Offer (the "Expiration Date"), without unless the consent Purchaser shall have extended the period of time for which the Company Offer is open pursuant to, and in its sole 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 absolute discretiondate as the Offer, (A) from time to time extend the Offer ifas so extended, may expire. If at the scheduled any Expiration Date, any of the conditions Tender Offer Conditions are not satisfied or waived by the Purchaser, the Purchaser may extend the Offer from time to time. Subject to the terms of the Offer shall not have been satisfied or waived until such time and this Agreement and the satisfaction of all the Tender Offer Conditions as such conditions are satisfied or waived to the extent permitted by this Agreement; (B) extend the Offer for of any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall the Purchaser will accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly soon as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance Expiration Date of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing consistent with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders provided that, if all of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis Tender Offer Conditions are satisfied and more than 65% but less than 80% of the funds necessary to purchase any outstanding shares of Company Common Stock that Merger Sub becomes obligated on a fully diluted basis (including shares of Company Common Stock issuable upon exercise of outstanding options to purchase pursuant to acquire shares of Company Common Stock) have been validly tendered and not withdrawn in the Offer, the Purchaser shall have the right, in its sole discretion, to extend the Offer from time to time for up to a maximum of 10 additional business days in the aggregate for all such extensions provided the Purchaser agrees to waive the conditions set forth in paragraphs (c), (f) and (g) of Annex II.
Appears in 3 contracts
Sources: Merger Agreement (Liberty Technologies Inc), Merger Agreement (Liberty Technologies Inc), Merger Agreement (Crane Co /De/)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 10 and (ii) none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or be existing, Merger Sub shall, as promptly as reasonably practicable but (and in no any event not later than ten business days eight (8) Business Days after the date of the public announcement of this Agreement), Parent and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act) the Offer for all of the Securities and Exchange Commission Shares, at the Offer Price, without interest.
(the "SEC"). b) The obligations obligation of Parent and Merger Sub to accept for payment, and pay for, any shares for Shares tendered shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of Company Common Stock tendered pursuant the Offer prior to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be and not withdrawn a number of Shares (including the 25th business day following Shares tendered under the commencement of Shareholder Agreements) which, together with the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Shares then owned by Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms Sub, represents at least ninety percent (90%) of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the total number of shares of Company Common Stock Fully Diluted Shares (as defined below) (the “Minimum Condition”), subject to such waivers of, and changes to, the OfferMinimum Condition as may be required pursuant to Section 1.1(e), and (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the other conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to Annex I hereto (collectively, the holders “Offer Conditions”). For purposes of this Agreement, “Fully Diluted Shares” shall mean the total number of outstanding shares of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, assuming (A) exercise on a cash basis of all outstanding Company Options, whether vested or unvested (excluding for this purpose all Company Options, whether vested or unvested, held by holders who have entered into binding written agreements with the Company agreeing to refrain from time to time extend exercising all or any portion of such Company Options during any period that the Offer if, at the scheduled Expiration Date, any of the conditions of remains pending and all Company Options with an exercise price greater than the Offer shall not Price, irrespective of whether the holders thereof have been satisfied or waived until entered into such time as such conditions are satisfied or waived to the extent permitted by this Agreement; binding written agreements), and (B) extend the Offer for any period required by any rule, regulation, interpretation exercise or position conversion of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order all other rights to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms Stock or securities convertible into Company Common Stock and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), issuance of all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerissue.
Appears in 3 contracts
Sources: Merger Agreement (Laserscope), Merger Agreement (American Medical Systems Holdings Inc), Merger Agreement (American Medical Systems Holdings Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have having been terminated in accordance with its terms pursuant to Article VII hereof the provisions of Section 8.1 hereof, Purchaser shall, and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto Parent shall have occurred or be existingcause Purchaser to, as promptly as reasonably practicable practicable, but in no event later than ten business days after five Business Days (as defined in the Distribution Agreement) from the date of the public announcement of the terms of this Agreement, Parent and Merger Sub shall commence an offer to purchase for cash (as it may be amended in accordance with the Offer within terms of this Agreement, the meaning "OFFER") all of the applicable rules and regulations Company's outstanding shares of the Securities and Exchange Commission common stock, par value $.25 per share, together with all preferred stock purchase rights associated therewith (the "SECSHARES"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date B attached hereto, at a price of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extendednot less than $38.00 per Share, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition net to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined seller in Exhibit A), add cash. Subject only to the conditions set forth in Exhibit A B hereto and the express provisions of the Distribution Agreement, the Purchaser shall, and Parent shall cause Purchaser to, (i) accept for payment and pay for all Shares tendered pursuant to the terms of 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 set forth in clause (i)(A) and clause (i)(B) of Exhibit B hereto are satisfied or modify any condition waived in accordance with the provisions thereof; provided, that the Purchaser shall be permitted, but shall not be obligated, to extend the period of time the Offer is open beyond June 30, 1996. Subject to the preceding sentence of this Section 1.1, 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 set forth in Exhibit A in B hereto shall not be satisfied or unless Parent reasonably determines that such extension is necessary to comply with any manner adverse legal or regulatory requirements relating to the holders Offer or the Spin-Off. Purchaser expressly reserves the right to amend the terms or conditions of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer; provided, that without the consent of the Company, no amendment may be made which (vi) change 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 (vi) otherwise amend amends any other term of the Offer in any manner materially adverse to the holders of Company Common StockShares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On Upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall Purchaser will accept for payment and purchase, as promptly soon as practicable after permitted under the date on which Parent or Merger Sub (as terms of the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")Offer, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant prior to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement expiration of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Loral Corp /Ny/), Merger Agreement (Lockheed Martin Corp), Merger Agreement (Lockheed Martin Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth described in any of paragraphs (a) through (e) or (hb) of Exhibit A Annex III hereto shall have occurred and be continuing (unless waived by Parent or be existingSub), as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this AgreementSub shall, and Parent and Merger shall cause Sub shall to, commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (together with the rules and regulations of promulgated thereunder, the Securities and “Exchange Commission Act”)) the Offer within ten (10) business days following the "SEC")date hereof. The obligations of Parent and Merger Sub to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares validly tendered pursuant and not withdrawn prior to the expiration of the Offer are (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 Exhibit A. 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 expiration date of the Offer shall be the 25th business day following the commencement made by means of the Offer an offer to purchase (the initial "Expiration Date," “Offer to Purchase”) that contains the terms set forth in this Agreement and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")conditions set forth in Annex III hereto. Parent and Merger Sub expressly reserve reserves the right to waive any condition of such conditions, to increase the Offer or modify Price and to make any other changes in the terms of the Offer; provided, except thathowever, without that Sub shall not, and Parent shall cause Sub not to, decrease the written consent Offer Price or change the form of consideration in which any component of the CompanyOffer Price is payable, Merger Sub shall not (i) reduce decrease the number of shares of Company Common Stock subject to Shares sought in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) waive or change or waive the Minimum Tender Condition (as defined in Exhibit AAnnex III hereto), add to modify or amend any of the conditions set forth in Exhibit A Annex III hereto or otherwise modify or amend any other term or condition set forth of the Offer, in Exhibit A 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 (iv21) 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 provided below set forth below, in this Section 1.01(aeach 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), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger but subject to the parties’ respective rights to terminate this Agreement in accordance with Section 8.1, Sub may (but shall not be obligated to)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 and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer beyond the initial expiration date if, at any scheduled (or extended) expiration of the scheduled Expiration DateOffer, any of the conditions of set forth in Annex III hereto (other than the Offer Minimum Condition) shall not have been be satisfied or waived until such for up to two periods of not more than ten (10) business days per extension, (ii) from time as such conditions are satisfied to time, extend the Offer if at the scheduled or waived extended Expiration Date the Minimum Condition is not satisfied, for up to the extent permitted by this Agreement; two periods of ten (B10) business days per extension or (iii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC United States Securities and Exchange Commission (“SEC”), or the staff thereof, applicable to the Offer; or (C) extend . In addition to the Offer for foregoing and excluded from any such limitations, Sub also may provide a "“subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause pursuant to be disseminated to Regulation M-A under the Company's stockholders, as and to the extent required by applicable federal securities lawsExchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). Each Subject to Section 5.2, the Company hereby consents to the inclusion in the Offer Documents of Parent, Merger Sub the recommendation and the approval of the Company shall 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 such information it shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), Law. Parent and each of Parent, Merger Sub and the Company shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities lawsLaw. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the The Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing Schedule TO and any amendment thereto before it is filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger SubSub shall give due consideration to all reasonable additions, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to deletions or modifications thereto suggested by the Company and its legal counsel. In addition, or Parent and Merger Sub and their counselagree to provide the Company with any comments, respectivelywhether written or oral, in writing any written comments (and orally, any oral comments), that Parent, Merger Sub or their counsel, on counsel may receive from time to time prior to the one hand, expiration or the Company on behalf termination of the CVR TrustOffer, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents Documents, promptly after the upon receipt of such comments comments, and any written or oral responses thereto, and the Company shall have the right to consult with the Company and its counselParent, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments, either in written or oral form. The Company will advise and its legal counsel shall be given a reasonable opportunity to review any responses to such comments or communications, and Parent and Merger Sub promptly after it receives notice that the Registration Statement shall give due consideration to all reasonable views and any supplement or amendment that has been filed have become effective, comments of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection Company and its legal counsel with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyrespect thereto.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis promptly following the expiration of the Offer or any subsequent extension thereof, as applicable, all funds necessary to purchase any shares of Company Common Stock promptly pay in full in cash the aggregate Offer Price for those Shares that Merger Sub becomes obligated to purchase have been validly tendered and not withdrawn pursuant to the OfferOffer and that Sub is obligated to accept for payment pursuant to the Offer and permitted to accept for payment under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Covidien Delaware Corp.), Merger Agreement (Power Medical Interventions, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall --------- not have been terminated in accordance with its terms pursuant to Article VII hereof Section 9.1 and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto Article 7 shall have occurred or and be existing, as promptly as reasonably practicable practicable, but in no event later than ten five (5) business days after the date of the public announcement of this Agreementthe execution hereof by the parties, Parent and Merger Sub Acquisition shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Offer; and regulations Acquisition shall use reasonable efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall accept for payment Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the condition that at least 2,000,000 Shares be validly tendered (the "Minimum Condition") and the other conditions set forth in Article 7. Acquisition expressly reserves the right to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer (provided that, unless previously approved by the Company in writing, no change may be made which decreases the Per Share Amount, which changes the form of consideration to be paid in the Offer, which imposes conditions to the Offer in addition to those set forth in Article 7 or which broadens the scope of such conditions). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (including any action or inaction by Acquisition) or may be waived by Acquisition, in whole or in part at any time and from time to time, in its sole discretion. The failure by Acquisition at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Any determination (which shall be made in good faith) by Acquisition with respect to any of the foregoing conditions (including, without limitation, the satisfaction of such conditions) shall be final and binding on the parties. The Per Share Amount shall be paid net to the seller in cash, less any required withholding of taxes, upon the terms and subject to such conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer. Pursuant to separate agreements, the persons listed in Schedules 2.1(a) and 2.1(b) have agreed not to tender in the Offer the number of Shares listed in such Schedules without Parent's consent.
(b) As soon as practicable after the date hereof, Acquisition shall file with the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, which shall contain include an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter form of transmittal and summary advertisement letter (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any amendments thereof or supplements or amendments thereto, collectively the "Offer Documents"). Each The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws. The information provided and to be provided by the Company, Parent a nd Acquisition for use in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a material fact nor 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, that no representation or warranty is made by Parent or Acquisition with respect to information supplied by the Company or any of its stockholders for inclusion in the Offer Documents. The Company agrees that information provided by the Company for inclusion or incorporation in the Offer Documents shall not contain any untrue statement of a material fact nor 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. Parent, Merger Sub Acquisition and the Company shall each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall Acquisition further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Marriott International Inc /Md/), Merger Agreement (Mi Subsidiary I Inc), Merger Agreement (Execustay Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable but in no event later than ten business days the later of (x) six Business Days after the date of this Agreement and (y) the public announcement first Business Day following publication in the Federal Register of this AgreementSEC Release Number 34-54684 relating to the amendments to Rule 14d-10 promulgated under the Exchange Act (the date of such publications referred to as the “Publication Date”), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "“SEC"”). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be midnight New York City time on the 25th business later of (x) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the Publication Date and (y) the 20th Business Day following the commencement of the Offer (determined using Exchange Act Rule 14d-1(g)(3) of the SEC) (the initial "“Expiration Date," ” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "“Expiration Date"”). Parent and Merger Sub expressly reserve reserves the right (x) if the Minimum Tender Condition has not been satisfied or if an Adverse Recommendation Change has been made, to increase the Offer Price and (y) to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided below in this Section 1.01(a1.1(a), extend the Offer, (vvi) change the form of consideration payable in the Offer or (vivii) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, in its discretion, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer iffor one or more consecutive increments of not more than five Business Days each, if at the any otherwise scheduled Expiration Date, Date of the Offer any of the conditions of the Offer shall to Merger Sub’s obligation to purchase Shares are not have been satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Bii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; Offer or (Ciii) make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11. In addition, if at any otherwise scheduled Expiration Date of the Offer any condition to the Offer is not satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one or more consecutive increments of not more than five Business Days each. In addition, Merger Sub 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 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" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90, Parent and Merger Sub, directly or indirectly own more than 80% of the outstanding shares of the Company Common StockFully Diluted Shares. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall accept for payment and purchase, as promptly as practicable after the date on which Parent or cause Merger Sub (as the case may be) first accepts shares to, accept and pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept purchase pursuant to the Offer as soon as practicable after the expiration of the Offer. For the avoidance of doubt, the parties hereto agree that shares of Restricted Company Common Stock may be tendered in the Offer and pay for under applicable lawbe acquired by Parent or Merger Sub pursuant to the Offer.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, the "“Offer Documents"”). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Parent and Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders’s shareholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing Parent, Merger Sub and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto will cooperate and consult with each other and their respective counsel shall be given a reasonable opportunity to review and comment upon in the preparation of the Offer Documents prior to their filing with Documents. Without limiting the SEC or dissemination to the stockholders generality of the Companyforegoing, the Company will furnish to Parent the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Offer Documents. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall (i) provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel in writing with any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall comments, (ii) consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments, and (iii) provide the Company and its counsel in writing with any comments or responses thereto of Parent, Merger Sub or their counsel. The Company will advise Parent and Merger Sub promptly after it receives notice that shall give the Registration Statement Company a reasonable opportunity to review and comment on the Offer Documents and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyamendments thereto.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) The Company hereby grants to Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase at a price per share equal to the Offer Price up to that number of newly issued shares of the Company Common Stock (the “Top-Up Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock, directly or indirectly, owned by Parent and Merger Sub at the time of exercise of the Top-Up Option shall constitute one share more than eighty percent (80%) of the Fully Diluted Shares immediately after the issuance of the Top-Up Share. The Top-Up Option shall be exercisable only once, at such time as Parent and Merger Sub, directly or indirectly, own at least 70% of the Fully Diluted Shares and prior to the fifth Business Day after the Expiration Date or the expiration date of any subsequent offering period. Such Top-Up Option shall not be exercisable to the extent the number of shares of Company Common Stock subject thereto (taken together with the number of Fully Diluted Shares outstanding at such time) exceeds the number of authorized shares of Company Common Stock available for issuances. The obligation of the Company to deliver the Top-Up Shares upon the exercise of the Top-Up Option is subject to the condition that no provision of any applicable Law and no Judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act. In the event Parent and Merger Sub wish to exercise the Top-Up Option, Merger Sub shall give the Company one (1) Business Day prior written notice specifying the number of shares of the Company Common Stock that are or will be, directly or indirectly, owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Shares and specifying a place and a time for the closing of such purchase. The Company shall, as soon as practicable following receipt of such notice, deliver written notice to Merger Sub specifying the number of Top-Up Shares. At the closing of the purchase of Top-Up Shares, the portion of the purchase price owed by Parent or Merger Sub upon exercise of such Top-Up Option shall be paid to the Company (i) in cash by wire transfer or cashier’s check or (ii) by issuance by Merger Sub to the Company of a promissory note on terms reasonably satisfactory to the Company.
Appears in 3 contracts
Sources: Merger Agreement (Abbott Laboratories), Merger Agreement (Kos Pharmaceuticals Inc), Merger Agreement (Jaharis Mary)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII IX hereof and none of the events set forth in paragraphs clause (a) through (e) or (hiii) of Exhibit A hereto the Tender Offer Conditions shall have occurred or be existingoccurred, as promptly as reasonably practicable (but in no event later than ten business days (10) Business Days) after the date of the public announcement of this Agreement, Parent and Merger Sub shall cause Purchaser to commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2 of the Securities Exchange Act) the Offer at the Offer Price. Subject to the terms and Exchange Commission conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions set forth in Annex I (including the "SEC"Minimum Condition). The obligations of , Purchaser shall, and Parent and Merger Sub to shall cause Purchaser to, promptly after the Expiration Date, accept for payment, payment and pay for, after giving effect to any withholding tax, all such shares of Company Seller Common Stock validly tendered pursuant to the Offer are and not withdrawn.
(b) Upon the terms and subject to the conditions set forth in Exhibit A. this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions that are necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement.
(c) The initial expiration date of the Offer shall be on the 25th business day following the 20th Business Day after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the initial "Expiration Date," and any expiration Exchange Act) (the latest time and date established as the Offer, as it may be extended pursuant to an authorized extension this Section 1.1(c), may expire shall be referred to as the “Expiration Date”). If on or prior to any then-scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and all other conditions and requirements set forth in Annex I) shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for periods of up to 10 Business Days each until the earlier of (x) the date on which the Minimum Condition has been met and all of the conditions and requirements set forth in Annex I are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Section 9.1; provided, however, that Purchaser shall not be required to extend the Offer beyond the Outside Date. Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer as so extendedin its sole discretion; provided, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offerhowever, except that, without the prior written consent of the CompanySeller, Merger Sub Purchaser shall not not:
(i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the Offer Price or decrease the number of shares of Seller Common Stock sought pursuant to the Offer;
(viii) otherwise amend extend the Expiration Date of the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, except (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted required by this Agreement; applicable law (B) extend the Offer including for any period required by any rule, regulation, interpretation or position of the SEC applicable to United States Securities and Exchange Commission (the Offer; “SEC”) or the staff thereof), or (CB) extend in connection with an increase in the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three consideration to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment be paid pursuant to the Offer so as to comply with applicable rules and regulations of the SEC;
(iii) waive or amend the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant Minimum Condition;
(iv) impose any condition to the Offer that Parent and Merger Sub are permitted not set forth in Annex I; or
(v) amend any term of the Offer in any manner materially adverse to accept and pay for under applicable lawholders of shares of Seller Common Stock.
(bd) As promptly as reasonably practicable but Purchaser may, without the consent of Seller, elect to provide a subsequent offering period for the Offer in no event later than ten business days after the date accordance with Rule 14d-11 of the public announcement Exchange Act following its acceptance for payment of this Agreement, the Company shall cause the CVR Trust (as defined shares of Seller Common Stock in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b.
(e) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall (i) file with the SEC, and or cause to be disseminated to filed with the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, Offer which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part the offer to purchase and forms of the Registration Statement and a related letter of transmittal and transmittal, summary advertisement (such Schedule TO and the other ancillary documents included therein and instruments required thereby pursuant to which the Offer will be made (including the Registration Statement), together collectively with any supplements or , amendments and exhibits thereto, and all deliveries, mailings and telephonic notices required by Rule 14d-3 under the "Exchange Act, the “Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise”), and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to (ii) cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case Seller Stockholders as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Exchange Act. Each of the parties hereto Seller and their respective its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing with the SEC SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by Seller or dissemination to the stockholders of the Companyits counsel. Parent and Merger SubPurchaser agree to provide Seller with (i) any comments or other communications, on the one handwhether written or oral, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, that may receive be received from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments thereof and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding thereto, and (ii) a reasonable opportunity to any such commentsprovide comments on that response (to which reasonable and good faith consideration shall be given). The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, If at any time prior to the time of consummation of the OfferEffective Time, any information relating to the CompanyOffer, Merger Sub or the CVR TrustMerger, Seller, Parent, Purchaser or any of their respective affiliates, officers or directorsAffiliates, should be discovered by the Company Seller or Parent and which should be set forth in an amendment or supplement to the Registration StatementOffer Documents, so that the Offer Documents shall not contain any of such documents would not include any misstatement 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 are made, not misleading, the party that which discovers such information shall promptly notify the other party party, and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC andand disseminated to the Seller Stockholders, as and to the extent required by applicable law, disseminated Law or any applicable rules or regulations of any stock exchange. Seller shall furnish to Parent and Purchaser all information concerning Seller required by the stockholders of Exchange Act to be set forth in the CompanyOffer Documents.
(cf) Parent shall provide or cause to be provided to Merger Sub Purchaser on a timely basis the funds necessary to purchase pay for any shares of Company Seller Common Stock that Merger Sub Purchaser becomes obligated to purchase pursuant to the OfferOffer and shall cause Purchaser to fulfill its obligations under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Kenexa Corp), Merger Agreement (Kenexa Corp), Merger Agreement (Kenexa Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto Article 6 shall have occurred or and be existingexisting (unless waived as provided in Article 6), as promptly as reasonably practicable after the date hereof (but in no event later than ten the twentieth business days day after the date of the public announcement of this Agreement), Parent and Merger Sub Acquisition shall commence the Offer (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Offer. The Offer will be made pursuant to the Offer Documents (as defined below) containing the terms and conditions set forth in this Agreement. Acquisition shall accept for payment, purchase and pay for all Shares, Convertible Preferred Stock and Warrants which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Article 6 shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and pay for Shares, Convertible Preferred Stock and Warrants tendered pursuant to the Offer shall be subject only to the condition that at least a majority of the then issued and outstanding Shares (giving effect to the conversion of all outstanding shares of Convertible Preferred Stock and the exercise of all then outstanding Warrants) be validly tendered (the "Minimum Condition") and the satisfaction of the other conditions set forth in Article 6. Acquisition expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the price per Share payable in the Offer or to make any other changes in the terms and conditions of the Offer (provided that, unless previously approved by the Company in writing, no change may be made which decreases the Per Share Amount, which reduces the number of Shares to be purchased in the Offer, which changes the form of consideration to be paid in the Offer, which imposes conditions to the Offer in addition to those set forth in Article 6 or which amends or changes any term or condition of the Offer in a manner adverse to the holders of Shares). In the case of shares of Convertible Preferred Stock tendered pursuant to the Offer, Acquisition shall pay the Per Share Amount multiplied by the number of Shares into which such Shares of Convertible Preferred Stock are then convertible. In the case of Warrants tendered pursuant to the Offer, Acquisition shall purchase such Warrants for a purchase price equal to the difference between the exercise price thereof and the Per Share Amount, multiplied by the number of Shares for which such Warrants are then exercisable. The Per Share Amount shall be paid net to each seller in cash, less any required withholding of taxes, upon the terms and subject to the conditions of the Offer. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on January 3, 2001 (the "Initial Expiration Date"); provided, however, without the consent of the Board, Parent may cause Acquisition to (i) from time to time extend the Offer, if at the Initial Expiration Date of the Offer, any of the conditions to the Offer necessary to consummate the Offer have not been satisfied or waived (other than the Minimum Condition, to which this clause (i) does not apply), until such time as such conditions are satisfied or waived; (ii) extend the Offer for any period required by any applicable rules and regulations rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to ) or the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, staff thereof; (iii) change or waive if the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a)is not satisfied, extend the Offer; provided that all extensions pursuant to clauses (i) through (iii) hereof shall not exceed twenty (20) business days, and (viv) change if the form Minimum Condition is satisfied but the number of consideration payable in Shares validly tendered and not withdrawn represents less than ninety percent (90%) of the then outstanding Shares (giving effect to the conversion of all then outstanding shares of Convertible Preferred Stock and the exercise of all then outstanding Warrants), after consummation of the Offer or and payment for all validly tendered shares, commence one subsequent offer for the Shares provided that Acquisition shall meet the requirements of Rule 14d-11 under the Exchange Act in connection with such subsequent offer; provided however, that in no event shall any such subsequent offer period exceed twenty (vi20) otherwise amend the Offer in any manner adverse to the holders of Company Common Stockbusiness days. Notwithstanding the foregoingIn addition, Merger Sub may (but Parent and Acquisition agree that Acquisition shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if requested by the Company, if, at the scheduled Initial Expiration DateDate (or any extended expiration date of the Offer, if applicable), any of the conditions of to the Offer including the Minimum Condition shall not have been satisfied waived or waived satisfied, until (taking into account all such time as such conditions are satisfied or waived extensions) February 28, 2001, provided, however, that if the Minimum Condition is the only condition to the extent permitted by this Agreement; (B) Offer not then satisfied, Acquisition shall not be required to extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or more than twenty (C20) extend the Offer for a "subsequent offering period" business days.
(as provided by Rule 14d-11 under the Exchange Actc) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly As soon as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Acquisition shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain include an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter form of transmittal and summary advertisement letter (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any amendments thereof or supplements or amendments thereto, collectively the "Offer Documents"). Each The Offer Documents shall comply in all material respects with the provisions of applicable federal securities laws and the rules and regulations of the SEC. Parent, Merger Sub Acquisition and the Company shall each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall Acquisition further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be promptly filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each laws and the rules and regulations of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after SEC. The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing being filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Acquisition agree to provide to the Company and its counsel, counsel any comments or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), other communications which Parent, Merger Sub Acquisition or their counsel, on counsel receives from the one hand, or the Company on behalf staff of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companythereof.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Ac Acquisition Subsidiary Inc), Merger Agreement (Chesapeake Biological Laboratories Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs subparagraphs (a) through (e) or (hc) of Exhibit A hereto Annex I shall have occurred and be continuing and not have been waived by Parent or be existingMerger Sub, as promptly as reasonably practicable but and, in no event later than ten business days after any event, within five (5) Business Days of the date of the public announcement of this Agreement, Parent and Merger Sub shall commence amend the Pending Offer within to reflect the meaning execution of this Agreement and the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")terms hereof. The obligations of Parent and Merger Sub to accept for payment, payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for, ) any shares of Company Common Stock validly tendered pursuant on or prior to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (as it may be extended and re-extended in accordance with this Agreement) and not properly withdrawn shall be subject to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer (as so extended, shall also it may be defined herein as an "Expiration Date"). Parent extended and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (ire-extended in accordance with this Agreement) reduce the that number of shares of Company Common Stock which represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis, including after giving effect to the issuances of shares of Company Common Stock pursuant to Section 2.12 (the “Minimum Condition”), and (ii) the other events or conditions set forth in Annex I. Subject to the terms and conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer, which shall initially be the later of April 2, 2010 or the date that is fifteen (15) Business Days after the date of this Agreement; provided, however, that (w) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended and re-extended in accordance with this Agreement), any of the events or conditions to the Offer set forth on Annex I shall exist and, subject to the Offerprovisions of this Agreement, shall not have been waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to), from time to time, extend the Offer for consecutive periods of not more than five (5) Business Days each until the earlier of (A) the date on which all of the events or conditions set forth in Annex I cease to exist or, subject to the provisions of this Agreement, are waived by Merger Sub and (B) the date on which this Agreement is terminated in accordance with ARTICLE VIII; provided that Merger Sub shall have no obligation to (and Parent shall have no obligation to cause Merger Sub to) so extend the Offer if (1) the events or conditions set forth in subsections (ii) reduce the Offer Price to be paid pursuant to the Offer), (iii) change and (iv) of the first paragraph of Annex I and subparagraph (a) of Annex I shall have ceased to exist, or waive subject to the Minimum Tender Condition provisions of this Agreement, been waived by Merger Sub, for a period of not less than ten (10) Business Days prior to the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as defined it may be extended and re-extended in Exhibit Aaccordance with this Agreement) and, with respect to subsections (ii), add (iii) and (iv) of the first paragraph of Annex I, such facts shall be reflected in an amendment to the Offer Documents prior to the start of such ten (10) Business Day period, (2) the events or conditions set forth in Exhibit A subparagraphs (b), (c) and (d) of Annex I shall have ceased to exist or, subject to the provisions of this Agreement, been waived by Merger Sub, as of such expiration date and (3) the Minimum Condition is not satisfied as of such expiration date, (x) if on the initial expiration date of the Offer or modify on any condition subsequent scheduled expiration date of the Offer (as it may be extended and re-extended in accordance with this Agreement), the Company shall have delivered to Parent a valid Section 8.1(d) Notice, Merger Sub shall (and Parent shall cause Merger Sub to), from time to time, extend the Offer for consecutive periods of not more than five (5) Business Days each until the earlier of (A) the date on which all of the events or conditions set forth in Exhibit A in any manner adverse the paragraph immediately following Section 8.1(d)(i) cease to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer exist or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of are waived by the Company and (B) the date on which this Agreement is terminated in accordance with ARTICLE VIII, (y) Merger Sub may, in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC (or the staff thereof) or the NYSE applicable to the Offer; or Offer and (Cz) extend the Offer for Merger Sub may, in its sole discretion, provide a "“subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange Act; provided that, in the case of clauses (w), (x), (y) for a period of three and (z), in no event shall the Offer extend beyond the Walk-Away Date. Merger Sub expressly reserves the right from time to twenty business days in order time to acquire at least 90% waive any of the outstanding shares conditions set forth in Annex I (other than the Minimum Condition, the Registration Condition, the Listing Condition and the condition set forth in subparagraph (e) of Annex I) or to increase the Company Common Stock. On Offer Price or to make any other changes in the terms and subject to conditions of the conditions to Offer; provided that, without the Offer that are set forth in this Agreementprior written consent of the Company, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to not decrease the Offer (Price, change the "Acceptance Date")form of consideration payable in the Offer, all decrease the number of shares of Company Common Stock validly tendered and not withdrawn pursuant sought to be purchased in the Offer, change, modify or waive the Minimum Condition, impose additional conditions to the Offer that Parent and Merger Sub are or modify or change any condition to the Offer in a manner materially adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer, reduce the time period during which the Offer shall remain open or, except for any extension required or permitted hereunder, extend or otherwise change the expiration date of the Offer, or amend, modify or supplement any other term of the Offer in any manner adverse to accept and pay for under applicable lawthe holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer.
(b) As Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable but and, in no event later than ten business days after any event, within five (5) Business Days of the date of the public announcement of this Agreement, in order to reflect the Company execution of this Agreement and the terms hereof, Parent shall file or cause the CVR Trust (as defined in Section 5.16 (a)) to file be filed with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a i) an amendment to Parent’s registration statement on Form S-4 (or such other appropriate form as it may be required thereunderamended or supplemented, the “Form S-4”) and (the "Registration Statement"ii) an amendment to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent Parent’s and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholdersSub’s tender offer statement on Schedule TO, as and to the extent required by applicable federal securities lawsamended, a Tender Offer Statement each originally filed on Schedule TO March 5, 2010 with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement Pending Offer (such Schedule TO schedule together with the Form S-4, and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)is made, together with and any amendments and supplements or amendments thereto, the "“Offer Documents"”). Each of ParentParty shall use its best efforts (i) to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing and (ii) to have removed as promptly as reasonably practicable any stop order suspending its effectiveness. Subject to the Company’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. Parent and Merger Sub, on the one hand, and the Company shall 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 such information it shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), Law. Parent and each of Parent, Merger Sub and the Company shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. The Company shall 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 as so amended or supplemented to be disseminated to the Company's stockholders, contained in each case as this Section 2.1(b). The Company and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the CompanySEC. In addition, Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counselcounsel with (i) any comments or communications, whether written or Parent and Merger Sub and their counseloral, respectively, in writing any written comments (and orally, any oral comments), that Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Merger Sub’s, as the case may be, receipt of such comments, and (ii) a reasonable opportunity to participate in the response of Parent or Merger Sub to those comments and shall consult with to provide comments on that response.
(c) In the Company and its counselevent this Agreement is terminated pursuant to Section 8.1 prior to the Acceptance Time, or Parent and Merger Sub and their counsel, respectively, prior to responding to shall promptly terminate the Offer without accepting any such comments. The shares of Company will advise Parent Common Stock previously tendered and Merger Sub shall promptly after it receives notice that the Registration Statement return, and shall cause any supplement or amendment that has been filed have become effectivedepository acting on behalf of Merger Sub to return, all tendered shares of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior Company Common Stock to the time registered holders thereof.
(d) No certificates or scrip representing fractional shares of consummation Parent Common Stock shall be issued by virtue of the Offer, no dividends or other distributions of Parent shall relate to such fractional share interests and such fractional share interests shall not entitle the owner thereof to vote or to any information relating rights of a stockholder of Parent. In lieu of such fractional share interests, Parent shall pay to each holder of shares of Company Common Stock who would otherwise be entitled to 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) an amount in cash equal to the Companyproduct obtained by multiplying (i) the fractional share interest to which such holder would otherwise be entitled by (ii) the average closing sales price, Merger Sub or rounded to four decimal points, of shares of Parent Common Stock on the CVR TrustNYSE (as reported in the Wall Street Journal, Parent, or any New York City edition) for the period of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement ten (10) consecutive trading days ending on the second full trading day prior to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make Acceptance Time (the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company“Parent Common Stock Cash Value”).
(ce) If any portion of the Offer Price is to be registered in the name of or paid to a Person other than the Person in whose name the tendered shares of Company Common Stock are registered, the amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), or such other Person, or otherwise) payable on account of such issuance or transfer to such other Person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, unless evidence satisfactory to Merger Sub of the payment of such Taxes, or exemption therefrom, is submitted.
(f) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 8.1, as promptly as reasonably practicable but following the date hereof and in no any event later than ten business days after within five (5) Business Days following the date of this Agreement (or such other later date as the public announcement of this Agreementparties may mutually agree in writing), Parent and Merger Sub (i) shall commence amend the Offer within to reflect the meaning execution of this Agreement and the applicable rules terms hereof, (ii) shall file an amendment to their Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and regulations of all other necessary documents and exhibits with the Securities and Exchange Commission (the "“SEC")”) and make all deliveries, filings, publications, mailings and telephonic notices required to be made in connection with the Offer under the federal securities Laws, including Regulations 14D and 14E of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”) (such documents filed or required to be filed with the SEC and such other filings, deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the “Offer Documents”) and (iii) shall use their reasonable best efforts to consummate the Offer. The obligations of If the Offer is consummated, Parent and will cause Merger Sub to accept for paymentpayment and pay for any shares of Company Common Stock tendered pursuant to the Offer, subject only to the conditions that (i) there shall be validly tendered and not withdrawn prior to the expiration of the Offer such number of shares of Company Common Stock that, when added to the shares of Company Common Stock already owned by Parent, Merger Sub and their Subsidiaries, would constitute at least a majority of the shares of Company Common Stock outstanding determined on a Fully Diluted Basis immediately prior to the date of expiration of the Offer (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto (collectively with the Minimum Condition, the “Tender Offer Conditions”) have been satisfied or waived in writing by Parent.
(b) Without the prior written consent of the Company, Parent and Merger Sub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in a manner that is materially adverse to the holders of shares of Company Common Stock, except as provided in this Agreement. The initial expiration date of the Offer shall be December 27, 2006 (the “Expiration Date,” unless the period of time for which the Offer is open shall be extended in accordance with the immediately following sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire); provided, however, that Parent and Merger Sub may provide for a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligations that Merger Sub immediately accept and promptly pay for all shares of Company Common Stock tendered during the initial offering period and immediately accept and promptly pay for any shares of Company Common Stock tendered during such subsequent offering period). Notwithstanding the foregoing,
(i) Parent and Merger Sub may, without the consent of the Company, from time to time, in their sole discretion, extend the Expiration Date for such period (not to exceed ten (10) Business Days on any single occasion) as Parent and Merger Sub may determine, to a date that is no later than March 31, 2007 (A) if immediately prior to the Expiration Date any of the Tender Offer Conditions are not satisfied or waived by Parent, or (B) if immediately prior to the Expiration Date, the Minimum Condition is satisfied but the number of shares of Company Common Stock that have been validly tendered (and not withdrawn) pursuant to the Offer is less than 90% of the number of shares of Company Common Stock outstanding determined on a Fully Diluted Basis;
(ii) if any of the Tender Offer Conditions (other than the Minimum Condition) is not satisfied on any scheduled Expiration Date, then, if requested by the Company, Parent and Merger Sub shall extend the Expiration Date one or more times (the period of each such extension to be determined by Merger Sub) for up to fifteen (15) Business Days in the aggregate for all such extensions), provided, that at the time of such extension any such condition is reasonably capable of being satisfied and the Company has not received an Acquisition Proposal that has not been withdrawn;
(iii) if (A) the Company has not received an Acquisition Proposal that has not been withdrawn, (B) the failure to achieve the Minimum Condition is not a result of the Company having failed to comply in any material respect with any of its covenants and agreements contained in this Agreement and (C) the Tender Offer Conditions (other than the Minimum Condition) have been satisfied or, if not then satisfied, either (1) are reasonably capable of being satisfied within five Business Days or (2) are unsatisfied (or not reasonably capable of being satisfied) as a result of a breach of this Agreement by Parent or Merger Sub, then, if at any scheduled Expiration Date, the Minimum Condition shall not have been satisfied, at the request of the Company, Parent and Merger Sub shall extend the Expiration Date one or more times for such period (not to exceed five (5) Business Days on any single occasion) as may be requested by the Company, provided, that in no event shall Parent and Merger Sub be required to extend the Expiration Date more than an aggregate of ten (10) Business Days pursuant to this clause (iii);
(iv) if (A) the Company receives an Acquisition Proposal ten (10) or fewer Business Days prior to a scheduled Expiration Date, then, if on such scheduled Expiration Date, the Minimum Condition is not satisfied and (B) the Company provides Parent with a written request that Merger Sub extend the Expiration Date, then Parent and Merger Sub shall extend the Offer, to such date as is necessary to assure that the Offer does not expire until ten (10) Business Days from the date the Company received such Acquisition Proposal, provided, that the Company may not deliver such a request on more than one occasion; and
(v) Parent and Merger Sub may (A) increase the Offer Price and extend the Expiration Date to the extent required by applicable Law in connection with such price increase and (B) subject to prior consultation with the Company, extend the Expiration Date to the extent otherwise required by applicable Law, in each case in Parent’s and Merger Sub’s reasonable discretion and without the Company’s consent. Parent and Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the written consent of the Company except in the event that this Agreement is terminated pursuant to Section 8.1 hereof.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of the Tender Offer Conditions as of any Expiration Date, including the Minimum Condition, Parent will cause Merger Sub to accept for payment and pay for any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly after such Expiration Date (such date as Merger Sub shall be obligated to accept for payment any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer, the “Acceptance Date”). For the avoidance of doubt, and pay fornotwithstanding anything in this Agreement to the contrary, Merger Sub shall not (and Parent shall cause Merger Sub not to) accept for payment any shares of Company Common Stock tendered pursuant to the Offer are subject to unless the conditions set forth in Exhibit A. The initial expiration date Minimum Condition shall have been satisfied.
(d) Each of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve Sub, on the right to waive any condition to the Offer or modify the terms of the Offerone hand, except that, without the written consent of and the Company, Merger Sub shall not (i) reduce on the number of shares of Company Common Stock subject other hand, agrees to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, correct promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to stockholders of the Company's stockholders, in each case case, as and to the extent required by or deemed advisable under applicable federal securities lawsLaws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to in advance of their filing with the SEC or and dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel copies in writing of any written comments (and orally, shall inform the Company of any oral comments), comments that Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information its counsel shall be promptly filed with the SEC and, given a reasonable opportunity to the extent required by applicable law, disseminated to the stockholders of the Companyreview any such written and oral comments and proposed responses.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Pilgrims Pride Corp), Merger Agreement (Gold Kist Inc.), Merger Agreement (Gold Kist Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01 and none of the events set forth in paragraphs (a) through (e) or (ha)—(g) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable but in no event later than ten business days on the date that is the 10th Business Day after the date of the public announcement of this Agreement, MergerSub shall, and Parent and Merger Sub shall cause MergerSub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Exchange Act) the Offer to purchase for cash all of the Securities and Exchange Commission (outstanding shares of Company Common Stock at the "SEC")Offer Price. The initial Expiration Date of the Offer shall be 12 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer. The obligations of MergerSub to, and of Parent and Merger Sub to cause MergerSub to, accept for payment, payment and to pay for, for any shares of Company Common Stock validly tendered on or prior to the expiration of the Offer and not validly withdrawn shall be subject only to (i) there being validly tendered and not validly withdrawn prior to the expiration of the Offer that number of shares of Company Common Stock which, when added to any shares of Company Common Stock already owned by Parent or any of the Parent Subsidiaries, if any, represents at least a majority of the shares of Company Common Stock outstanding on a Fully-Diluted Basis, excluding shares of Company Common Stock tendered in the Offer pursuant to guaranteed delivery procedures (the Offer are subject “Minimum Condition”) and (ii) the satisfaction or waiver (to the extent permitted under this Agreement) of the other conditions set forth in Exhibit A. The initial expiration date Annex I hereto (collectively, the “Offer Conditions”). MergerSub expressly reserves the right, from time to time, to waive any of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant Conditions or to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify make other changes in the terms and conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub MergerSub shall not (iA) reduce amend or waive the Minimum Condition, (B) decrease the Offer Price, (C) decrease the number of shares of Company Common Stock subject to sought in the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vD) change the form of consideration payable in the Offer, (E) impose conditions to the Offer that are in addition to the Offer Conditions, (F) extend the Expiration Date of the Offer in any manner other than as permitted in this Section 1.01 or (viG) otherwise amend any of the terms and conditions of the Offer in any manner adverse to the holders of the shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but u) if there shall not be obligated tohave been one or more Extension Excluded Parties as of the Extension Excluded Party Notice Date and the Company shall have delivered to Parent the written notice identifying such Extension Excluded Party in accordance with Section 5.03(b), without the consent of the Company and in its sole and absolute discretion, (A) from time to time MergerSub shall extend the Offer if, at until the scheduled Expiration first Business Day following the Cut-off Date, any of (v) if on the conditions initial Expiration Date of the Offer or on any subsequent scheduled Expiration Date of the Offer, all Offer Conditions shall not have been satisfied or waived until waived, MergerSub may, from time to time, in its sole discretion, extend the Offer for one or more periods of not more than five (5) Business Days each beyond such time as such conditions are satisfied or waived Expiration Date, provided, however, that MergerSub shall not be entitled to extend the extent permitted by this Agreement; Offer to any date occurring after the Termination Date, (Bw) MergerSub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or NASDAQ applicable to the Offer; or , (Cx) MergerSub shall extend the Offer for one or more periods of no more than five (5) Business Days each (or such longer period as the parties hereto agree) until the condition set forth in clause (ii) of the first paragraph of Annex I related to the HSR Act and Foreign Antitrust Laws is satisfied or waived; provided, however, that in no event shall MergerSub be required to extend the Offer (1) beyond the Termination Date or (2) at any time that Parent or MergerSub is permitted to terminate this Agreement pursuant to Article VIII, (y) if on any scheduled Expiration Date, the Minimum Condition is not satisfied but all other Offer Conditions are satisfied, then MergerSub shall extend the Offer on a "single occasion for a five (5) Business Day period; provided, however, that in no event shall MergerSub be required to extend the Offer (1) beyond the Termination Date or (2) at any time that Parent or MergerSub is permitted to terminate this Agreement pursuant to Article VIII, and (z) MergerSub may, in its sole discretion, provide a “subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange ActAct (a “Subsequent Offering Period”) for of not more than twenty (20) Business Days to meet the objective that there be validly tendered, in accordance with the terms of the Offer, prior to the Expiration Date and not validly withdrawn, a period number of three shares of Company Common Stock, which when added to twenty business days in order to acquire any shares of Company Common Stock already owned by Parent or any of the Parent Subsidiaries, represent at least 90% of the then outstanding shares of the Company Common StockStock at the Offer Closing (including following the exercise of the Top-Up Option at Parent or MergerSub’s option). On In addition, MergerSub may increase the Offer Price and extend the Offer to the extent required by applicable Law in connection with such increase in each case in its sole discretion and without the Company’s consent. Subject to the prior satisfaction of the Minimum Condition and the prior satisfaction or waiver by Parent or MergerSub (to the extent permitted under this Agreement) of the other Offer Conditions, MergerSub shall, and Parent shall cause MergerSub to, in accordance with the terms and subject to of the conditions to Offer, consummate the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall and accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly (within the meaning of Rule 14e-1(c) promulgated under the Exchange Act) after expiration of the Offer (subject to the provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer Price shall be net to the seller in cash, without interest, upon the terms and subject to the conditions of the Offer. Acceptance for payment of the shares of Company Common Stock pursuant to and subject to the conditions of the Offer after the expiration of the Offer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. If the payment of the Offer Price is to be made to a Person other than the Person in whose name the tendered Certificate is registered, it shall be a condition of payment that (x) the Certificate so tendered be properly endorsed or shall be otherwise in proper form for transfer, and (y) the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the Certificate tendered, or required for any other reason relating to such holder or requesting Person, or shall have established to the satisfaction of Parent and Merger Sub are permitted MergerSub that such Tax either has been paid or is not required to accept and pay for under applicable lawbe paid.
(b) As promptly as reasonably practicable but in no event later than ten business days after MergerSub shall not terminate the date Offer prior to any scheduled Expiration Date without the prior written consent of the public announcement of Company, except if this AgreementAgreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, the Company MergerSub shall, and Parent shall cause the CVR Trust MergerSub to, promptly (as defined and in Section 5.16 any event within twenty-four (a)24) to file with the SEC under the Securities Act hours of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"such termination), a registration statement on Form S-4 (or irrevocably and unconditionally terminate the Offer, and MergerSub shall not in the event of any such other appropriate form as may be required thereunder) (the "Registration Statement") termination pursuant to register the offer and sale by Merger Sub Article VIII acquire any shares of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") Company Common Stock pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing If the information required under Offer is terminated by MergerSub, or this Agreement is terminated prior to the acquisition of shares of Company Common Stock in the Offer, MergerSub shall promptly (within the meaning of Rule 14d-4(b14e-1(c) promulgated under the Exchange Act. On ) return, and shall cause any depositary acting on behalf of MergerSub to return, in accordance with applicable Law, all shares of Company Common Stock that have been tendered in the Offer to the registered holders thereof.
(c) As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Sub MergerSub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an include the offer to purchase and exchange and will contain or incorporate by reference all or part forms of the Registration Statement and a related letter of transmittal and summary advertisement notice of guaranteed delivery and all other required or appropriate ancillary Offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). Each Subject to the Company’s compliance with Section 1.02(c), Parent and MergerSub shall cause the Offer Documents to be disseminated to holders of Parentshares of Company Common Stock as required by applicable U.S. federal securities Laws. Parent and MergerSub, Merger Sub on the one hand, and the Company shall 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 such information it shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall applicable Law. MergerSub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. The Company shall promptly furnish to Parent and MergerSub all information concerning the Company that is required or reasonably requested by Parent or MergerSub in connection with the obligations relating to the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, contained in each case as this Section 1.01(c). The Company and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the CompanySEC. In addition, Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall MergerSub agree to: (i) provide to the Company and its counsel, counsel with any comments or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), communications that Parent, Merger Sub MergerSub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or MergerSub’s, as the case may be, receipt of such comments and shall consult or communications, (ii) cooperate with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to counsel in responding to any such comments or communications, and (iii) use their respective reasonable best efforts to respond promptly to such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(cd) Parent shall provide or cause to be provided to Merger Sub MergerSub on a timely basis the funds consideration necessary to purchase pay for any shares of Company Common Stock that Merger Sub MergerSub becomes obligated to purchase accept for payment and pay for pursuant to the Offer, and shall cause MergerSub to fulfill all of MergerSub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
The Offer. (a) Subject to 1.1.1 As promptly as practical after the conditions date of this Agreement on a date mutually agreeable to Parent, HoldCo and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs Company (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after August 16, 2016), Merger Sub shall (and Parent and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to) commence (within the date meaning of Rule 14d-2 under the public announcement Exchange Act) the Offer.
1.1.2 In accordance with the terms and conditions of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant subject to the Offer are subject satisfaction or waiver (to the extent such waiver is permitted by applicable Law) of the conditions set forth in Exhibit A. The initial expiration date of Annex I (collectively, the “Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"Conditions”). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (iand HoldCo shall (and Parent shall cause HoldCo to) reduce cause Merger Sub to), promptly (within the number meaning of shares Rule 14e-1(c) of Company Common Stock subject to the OfferSecurities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (iithe “Exchange Act”)) reduce following the Expiration Time, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Price to be paid pursuant to the Offer, Acceptance Time (iiibut in any event within three (3) change or waive the Minimum Tender Condition Business Days (calculated as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (ivRule 14d-1(g)(3) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) thereafter) pay for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") 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 Registration Statement will include Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided that, 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 preliminary prospectus containing manner materially adverse to the information required under 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-4(b) 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1.5, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
1.1.5 Subject to the parties’ respective rights to terminate the Agreement pursuant to Section 7, the Offer may or shall, as applicable, be extended 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, HoldCo and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to, extend the 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 of up to 20 successive Business Days at the sole discretion of Parent and HoldCo or as may be agreed to by Parent, HoldCo and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that Merger Sub shall not be required or permitted to extend the Offer to a date later than the Outside Date; and
(ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the Securities and Exchange Commission (the “SEC”) or its staff, or The NASDAQ Global Select Market (“NASDAQ”) or its staff. Merger Sub shall not, and HoldCo shall (and Parent shall cause HoldCo to) not permit Merger Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.1.5 or as may otherwise be agreed in writing with the Company. Notwithstanding the foregoing, in the event that, as a result of the extension of the Offer in accordance with the provisions of this Section 1.1.5, the Expiration Time would occur on or after the date that is the Outside Date, the Expiration Time shall instead occur at 5:00 p.m., (New York City time), on the Business Day immediately preceding the Outside Date.
1.1.6 The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such amendment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided, however, that the Company may not effect such change except as expressly permitted by this Agreement.
1.1.7 In the event that this Agreement is terminated in accordance with Section 7, Merger Sub shall (and HoldCo shall (and Parent shall cause HoldCo to) cause Merger Sub to) as promptly as practicable (and in any event within one Business Day of such termination) irrevocably and unconditionally terminate the Offer, and shall not acquire any shares of Company Common Stock pursuant to the Offer and shall instruct any depository acting on behalf of Parent, HoldCo or Merger Sub to return, in accordance with applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
1.1.8 On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Parent, HoldCo or Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer in accordance with Rule 14d-3 under the Exchange Act (together with all exhibits, which shall contain an offer to purchase amendments and exchange and supplements thereto, the “Schedule TO”) that will contain or incorporate by reference all or part the Offer to Purchase and form of the Registration Statement and a related letter of transmittal and summary advertisement (such the Schedule TO and the TO, together with all documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments theretomade, the "“Offer Documents"”). Parent, HoldCo and Merger Sub shall cause, at Merger Sub’s expense, the Offer Documents to be disseminated to the Company’s stockholders as and to the extent required by applicable Law. Each of Parent, HoldCo, Merger Sub and the 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 such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of ParentParent and HoldCo further agree to use reasonable best efforts to promptly cause, at Merger Sub and the Company shall take all steps necessary to amend or supplement Sub’s expense, the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented corrected, to be filed with the SEC and the Offer Documents as so amended or supplemented to promptly be disseminated to the Company's ’s stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities lawsLaw. Each of the parties hereto The Company shall use all reasonable best efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing furnish or otherwise make available to Parent, HoldCo, Merger Sub or Parent’s, HoldCo’s and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, Merger Sub’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, HoldCo or Merger Sub for inclusion in or in connection with the Offer Documents. Parent, HoldCo and Merger Sub shall cause give the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto Company and their respective its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent Parent, HoldCo and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel with a copy of any written comments (comments, and orally, a written summary of any oral comments), that Parent, HoldCo, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of any such comments comments. Each of Parent, HoldCo and Merger Sub shall consult with give the Company and its counselcounsel a reasonable opportunity to review and comment on any proposed written responses to any comments of the SEC or its staff with respect to the Offer Documents.
1.1.9 Parent, or Parent and HoldCo, Merger Sub and their counsel, respectively, prior the paying agent with respect to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with entitled to deduct and withhold from the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase Offer Price payable pursuant to the OfferOffer such amounts as are required to be deducted and withheld with respect to the making of such payment under 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
Sources: Merger Agreement (Steinhoff International Holdings N.V.), Merger Agreement (Mattress Firm Holding Corp.)
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A Annex I hereto shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable after the date hereof, but in no event later than ten the fifth business days day after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase all of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any 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 pay for shares of Company Common Stock validly tendered pursuant to the Offer are and not subsequently withdrawn shall be subject only to the conditions set forth in Exhibit A. Annex I hereto (the “Offer Conditions”). The initial expiration date of the Offer shall be the 25th business day following the commencement of on which Merger Sub “commences” the Offer (within the initial "Expiration meaning of Rule 14d-2 under the Exchange Act) is hereafter referred to as the “Offer Commencement Date," and any expiration time and date established pursuant to an authorized extension of ”. To the Offer as so extendedextent permitted by applicable Law, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve reserves the right to waive any condition to of the Offer or modify Conditions and to make any change in the terms of the Offer, except that, that without the written prior consent of the Company, Merger Sub shall not (iA) reduce decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number or percentage of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition (as defined in Exhibit AAnnex I), add (D) impose any conditions to the Offer in addition to the conditions set forth in Exhibit A on Annex I, (E) amend or modify any condition set forth the Offer in Exhibit A in any a manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to taken as a whole, or (F) extend the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust Expiration Date (as defined in Annex I) except as required or permitted by this Section 5.16 1.1(a). The Expiration Date shall be the 20th Business Day next following the Offer Commencement Date (a)) to file with the SEC under the Securities Act of 1933, calculated as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunderset forth in Rule 14d-1(a) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b3) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Plethico Pharmaceuticals Ltd.), Merger Agreement (Nutra Acquisition CO Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof ARTICLE 10 and none (ii) all of the events conditions set forth in paragraphs clauses (ab), (c) through and (eg) of Annex I shall then be satisfied (in the case of clause (b), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived (hto the extent applicable) of Exhibit A hereto shall have occurred or be existingby Parent and Merger Sub, as promptly as reasonably practicable but Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange 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 no event later than ten business days after connection with the date preparation of the public announcement 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 the “Offer Commencement Date.”
(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 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 (and not theretofore accepted for payment), if (i) immediately prior to the 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 Acceptance Time (such condition being the “Minimum Condition”); and (ii) at the Expiration Date, any of the other conditions set forth in Annex I (the Minimum Condition and the other conditions set forth in Annex I are referred to collectively as the “Offer 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 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 and conditions thereof. For purposes of determining whether the Minimum Condition has been satisfied, Parent and Merger Sub shall commence may, in their sole discretion, include or exclude Shares tendered in the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer guaranteed delivery procedures.
(the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). d) Parent and Merger Sub expressly reserve the right right, in their sole discretion, to (i) increase the Offer Price, (ii) waive any condition Offer Condition, and (iii) make any other changes to the Offer or modify the terms and conditions of the Offer; provided, except thathowever, without the prior written consent of the Company, Parent and Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offernot, (ii) reduce the Offer Price to be paid except pursuant to the OfferSection 6.02(b): (A) amend, (iii) change modify or waive the Minimum Tender Condition or the Termination Condition; (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vB) change the form of consideration payable to be delivered by Merger Sub pursuant to the Offer; (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 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 “subsequent offering period” in accordance with Rule 14d-11 of the Exchange Act; or (viH) otherwise amend the Offer or waive or modify any Offer Condition in any manner adverse to that adversely affects (other than in an immaterial respect) the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawShares generally.
(be) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) Subject to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"Sections 2.01(f), (g) and (i), each holder of Shares shall be entitled to elect for the Shares held by such holder (i) the number of such Shares that such holder desires to exchange for the right to receive the Cash Consideration (a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC“Cash Election”), and cause (ii) the number of such Shares that such holder desires to exchange for the right to receive the Share Consideration (a “Share Election”). Any Cash Election or Share Election shall be disseminated referred to the Company's stockholders, herein as an “Election,” and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of on a form mutually agreed by Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect purpose (whether by virtue a “Form of a material misstatement, material omission or otherwiseElection”), and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents included as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each part of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing letter of election and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to transmittal accompanying the Offer. Following the time the Registration Statement is declared effectiveHolders of record who hold Shares as nominees, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each trustees or in other representative capacities may submit multiple Forms of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company Election on behalf of their respective beneficial holders, but only one (1) such Form of Election for each such beneficial holder. For the CVR Trustavoidance of doubt, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf a holder of the CVR Trust, on the other hand, Shares may receive from the SEC or its staff make a Cash Election and/or a Share Election with respect to the Offer Documents promptly after the receipt all or any part of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyholder’s Shares.
(cf) Parent 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, such Elections shall provide or cause be subject to proration as follows: for each Cash Election, the number of Shares that shall be provided converted into the right to Merger Sub 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, rounded down to the nearest Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Available and (y) the denominator of which shall be the product of the aggregate number of Shares subject to 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 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 timely basis pro rata basis, such that each holder who tenders Shares subject to a Cash Election bears its proportionate share of the funds necessary proration, based on the percentage of all such Shares subject to purchase any shares Cash Elections that is reflected by the total amount of Company Common Stock that Merger Sub becomes obligated Shares subject to purchase pursuant to the Offera Cash Election tendered by such holder.
Appears in 2 contracts
Sources: Merger Agreement (Mitel Networks Corp), Merger Agreement (Mavenir Systems Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant Article X and provided further that the Company is prepared (in accordance with Section 1.2) to Article VII hereof and none of file the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSchedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as reasonably practicable but in no event later than ten business days after the date of this Agreement, but in any event not later than 5 Business Days from the public announcement date of this Agreement, Parent and Merger Sub shall (and Parent shall cause Merger Sub to), if, and only if, this Agreement has been executed by the Company at or prior to 8:00 p.m., New York City time, on December 31, 2015, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer.
(b) The obligation of Merger Sub to, and regulations of Parent to cause Merger Sub to, accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer (and not validly withdrawn) prior to any then scheduled Expiration Time that number of Shares which, together with the Shares beneficially owned by Parent, Merger Sub or any of their respective Subsidiaries or Affiliates, represents at least a majority of the Securities and Exchange Commission Fully Diluted Shares as of immediately prior to the Expiration Time (the "SEC"“Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth on Exhibit A (together with the Minimum Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, any Shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such Shares have been delivered pursuant to such procedures. Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other 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 all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time. The obligations conditions to the Offer set forth on Exhibit A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any Party from any obligation or liability such Party has under this Agreement) giving rise to accept for paymentsuch condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and pay forfrom time to time, any shares subject to this Section 1.1. The Offer Price payable in respect of Company Common Stock each Share validly tendered and not validly withdrawn pursuant to the Offer are subject shall be paid net to the conditions set forth seller in Exhibit A. cash, without interest, less any applicable Tax withholding.
(c) The initial expiration date of the Offer shall be the 25th business day following the commencement made by means of the Offer an offer to purchase (the initial "Expiration Date," “Offer to Purchase”) that describes the terms and any expiration time and date established pursuant to an authorized extension conditions of the Offer as so extendedset forth in this Agreement, shall also be defined herein as an "Expiration Date")including the Offer Conditions. Parent and Merger Sub expressly reserve the right (in their sole discretion) to waive waive, in whole or in part, any condition Offer Condition (other than the Minimum Condition), to increase the Offer Price or modify to make any other changes in the terms and conditions of the Offer; provided, except thathowever, without the written consent of that unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall not, and Parent shall not on Merger Sub’s behalf, (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) add to the conditions set forth on Exhibit A or modify or change any Offer Condition in 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 amend, modify or supplement any of the terms of the Offer in any a manner adverse to any shareholders of the holders Company.
(d) Subject to the terms and conditions of Company Common Stock. Notwithstanding this Agreement, unless the foregoingOffer is extended in accordance with this Agreement or the Parties shall otherwise agree, the Offer shall expire at midnight, New York City time, on 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 may, and at the request of the Company shall (but and Parent shall not be obligated cause Merger Sub to), without extend the consent Offer on one or more occasions for periods of up to 20 Business Days per extension (with the Company and length of any such extension to be determined by Merger Sub (or Parent on its behalf) in its sole discretion) up to and absolute discretionincluding the Termination Date, (A) from time to time extend the Offer if, if at the any then-scheduled Expiration Date, Time any of the conditions of the Offer shall Condition has not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; and (Bii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods if required by any rule, regulation, interpretation or position of the SEC Law applicable to the Offer; or (C) 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 for beyond the Termination Date.
(f) Following expiration of the Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a "subsequent offering period" period or one or more extensions thereof (as provided by a “Subsequent Offering Period”) in accordance with Rule 14d-11 under of the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% Act if, as of the outstanding shares 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 Offer, that number of Shares necessary to permit the Merger to be effected without a meeting of shareholders of the Company Common Stockin accordance with Section 321(d)(1)(ii) of the PBCL. On Nothing contained in this Section 1.1 shall affect any termination rights in Article X.
(g) Subject to the terms and subject conditions of this Agreement and the satisfaction or waiver of the Offer Conditions prior to the conditions Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, (i) promptly after the date of the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.1), accept for payment all Shares that have been validly tendered and not properly withdrawn pursuant to the Offer that are set forth (such acceptance for payment of Shares following the satisfaction or waiver of the Offer Conditions as of the Expiration Time is referred to in this AgreementAgreement as the “Offer Closing”), promptly after which acceptance shall be by written notice to the Expiration DatePaying Agent, either Parent (ii) on the date of the Offer Closing, deposit or Merger Sub shall accept cause to be deposited with the Paying Agent cash in U.S. dollars sufficient to pay the aggregate Offer Price for payment such accepted Shares and purchase, (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 date on which Expiration Time. Parent shall provide or cause to be provided to Merger Sub (as on a timely basis the case may be) first accepts shares funds necessary to pay for any Shares that Merger Sub becomes obligated to accept for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and shall cause Merger Sub are permitted to accept and pay for fulfill all of Merger Sub’s obligations under applicable lawthis Agreement.
(bh) Merger Sub shall not terminate the Offer prior to any then-scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article X. If the Offer is terminated or withdrawn by Merger Sub in accordance with 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, 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 registered holders thereof.
(i) As promptly soon as reasonably practicable but in no event later than ten business days after on the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). Each of Parent, The Company shall promptly furnish in writing to Parent and Merger Sub all information concerning the Company and its Subsidiaries that may be required by applicable Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Parent and Merger Sub shall take all steps reasonably necessary to cause the Offer Documents to be filed with the SEC and disseminated to the shareholders of the Company, in each case as and to the extent required by the Exchange Act. Parent and Merger Sub, on the one hand, and the Company shall 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 such information shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), applicable Law. Parent and each of Parent, Merger Sub and the Company shall further agree to take all steps reasonably necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented corrected (if applicable), to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the shareholders of the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Exchange Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger SubSub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the Company on behalf of the CVR TrustSEC, on the other hand, shall provide . Prior to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf filing of the CVR Trust, on the other hand, may receive from Offer Documents (including any amendments or supplements thereto) with the SEC or its staff dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents promptly after the receipt of such comments Documents, Parent and Merger Sub shall consult with provide the Company and its counselcounsel a reasonable opportunity to review and comment on such Offer Documents or response, or and Parent and Merger Sub shall give reasonable and their counsel, respectively, prior to responding good faith consideration to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Pep Boys Manny Moe & Jack), Merger Agreement (Icahn Enterprises Holdings L.P.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not --------- have been terminated in accordance with its terms pursuant to Article VII hereof VIII and so long as none of the events set forth in paragraphs Annex A (athe "Tender Offer Conditions") through (e) or (h) of Exhibit A hereto shall have occurred and no fact, occurrence or be existingcircumstance shall exist which would result in a failure to satisfy any of the Tender Offer Conditions, subject to the provisions of this Agreement, as promptly as reasonably practicable practicable, but in no event later than ten business days after seven (7) Business Days following the date first public announcement of the public announcement terms of this Agreement, Parent and Merger Sub Acquiror shall commence the Offer commence, within the meaning of Rule 14d-2 under the applicable rules and regulations of the Securities and Exchange Commission Act (the "SEC"as hereinafter defined). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to at the conditions set forth in Exhibit A. Offer Price. The initial expiration date of the Offer shall be the 25th business day twentieth Business Day following the commencement of date the Offer is commenced within the meaning of Rule 14d-2 under the Exchange Act (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Initial Expiration Date"). The obligation of Acquiror 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 Annex A, any of which, other than the Minimum Condition (as defined in Annex A), may be waived by Parent or Acquiror in their sole discretion. Parent and Merger Sub Acquiror expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except ; provided -------- that, without the prior written consent of the Company, Merger Sub neither Parent nor Acquiror shall not (i) waive the Minimum Condition, (ii) reduce the number of shares of Company Common Stock Shares subject to the Offer, (iiiii) reduce the Offer Price price per Share to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (v) amend any term or add any condition of the Offer (including the conditions set forth on Annex A), in each case, in any manner that would adversely affect the shareholders of the Company in any material respect or (vi) otherwise amend extend the Offer Initial Expiration Date, except as required by law and except that Parent and the Acquiror shall have the right, in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its their sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions expiration date of the Offer for up to ten (10) Business Days after the Initial Expiration Date if as of that date there shall not have been satisfied or waived until such time as such conditions are satisfied or waived tendered a number of Shares that, when added to the extent permitted by this number of Shares subject to the Voting Agreement; , constitute at least ninety percent (90%) of the outstanding shares of Common Stock on a fully-diluted basis, (B) extend to elect to provide a subsequent offering period for the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by in accordance with Rule 14d-11 under the Exchange ActAct or (C) for a period of three to twenty business days in order to acquire at least 90% extend the expiration date of the outstanding shares Offer from time to time for successive periods of up to 20 Business Days each, but in no event later than the four month anniversary of the date of this Agreement, if the conditions set forth in Annex A have not been met. If on any scheduled expiration date of the Offer, the Offer would have expired without any Shares being purchased because the conditions set forth in Annex A have not been met, Parent and Acquiror shall, at the request of the Company Common Stock. On (subject always to the terms and subject conditions of this Agreement, including Article VIII), extend the expiration date of the Offer from time to time for successive periods of up to 20 Business Days each (but in no event later than the four-month anniversary of the date of this Agreement) unless Parent reasonably believes at such time that such conditions are not capable of being satisfied. Subject to the terms and conditions to of the Offer that are set forth in this AgreementAnnex A, promptly after the Expiration Date, either Parent or Merger Sub Acquiror shall accept pay for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are as soon after the expiration of the Offer as it is legally permitted to accept and pay for do so under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Acquiror shall file with the Securities and Exchange Commission (the "SEC, ") and cause to be disseminated to holders of the Company's stockholders, as and to the extent required by applicable federal securities laws, Shares a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain (included as an Exhibit) or incorporate by reference an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and transmittal, a summary advertisement and a Rule 13e-3 Transaction Statement on Schedule 13E-3 (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any supplements or amendments thereto, the "Offer Documents"). The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC. Each of Parent, Merger Sub Acquiror and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub Parent and the Company shall Acquiror further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of shares of Common Stock, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Acquiror agree to provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel in writing with copies of any written comments (and orally, any oral comments), Parent, Merger Sub Acquiror or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanyDocuments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Pine Holdings Inc), Merger Agreement (Pulaski Furniture Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof IX, and none of the events set forth in paragraphs (a), (b), (c) through (to the extent performance is required theretofore), (e) or and (hf) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable but and in no any event later than within ten business days (10) Business Days after the date of the public announcement of this Agreementhereof, Parent and Merger Sub MergerSub shall commence the Offer (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 14d-2 under the Exchange Act) for a period of three an offer to twenty business days in order to acquire at least 90% of the purchase all outstanding shares of the Company Common Stock. On the terms and subject to the conditions to Shares at the Offer that are set forth in this AgreementPrice, promptly after the Expiration Dateand shall, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of upon commencement of the OfferOffer but after affording the Company reasonable opportunity to review and comment thereon, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement Offer (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents"”), and shall use its commercially reasonable efforts to consummate the Offer, subject to the terms and conditions thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”), MergerSub shall, as soon as possible after the expiration of the Offer (or, if applicable, the expiration of the “initial offering period”), accept for payment, and pay for (after giving effect to any required withholding Tax), all Company Common Shares validly tendered pursuant to the Offer and not withdrawn (the first date of acceptance for payment, the “Acceptance Date”). Each of Parent, Merger Sub MergerSub and the Company shall each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company MergerSub shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended corrected or supplemented supplemented, to be filed with the SEC and the Offer Documents Documents, as so amended corrected or supplemented supplemented, to be disseminated to the Company's stockholdersholders of shares, in each case as and to the extent required by or deemed advisable under applicable federal Federal securities laws. Each of the parties hereto MergerSub shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, provide the Company with (in writing, if written), and shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing consult with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orallyregarding, any oral comments), Parent, Merger Sub comment (written or their counsel, on the one hand, oral) that may be received by MergerSub or the Company on behalf of the CVR Trust, on the other hand, may receive its counsel from the SEC or its staff with respect to the Offer Documents as promptly as practicable after the receipt of such comments and shall consult with the thereof. The Company and its counsel, or Parent counsel shall be given a reasonable opportunity to review and Merger Sub and their counsel, respectively, prior to responding to comment on any such commentswritten and oral comments and proposed responses.
(b) Without the prior written consent of the Company, MergerSub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Common Shares. MergerSub may, in its sole and absolute discretion, increase the price per Company Common Share payable in the Offer without the consent of the Company. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, initial expiration date of the issuance of any stop order, or Offer shall be the twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the suspension Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act). MergerSub expressly reserves the right to waive any condition to the Offer (provided that any waiver of the qualification Minimum Tender Condition shall require the prior written consent of the CVR Certificates issuable in connection with Company) or modify the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation terms of the Offer, any information relating subject to compliance with the Exchange Act and the first sentence of this subsection (b); provided that all such modifications to the Companyterms of the Offer (other than a modification to increase the Offer Price or to waive a condition to the Offer) shall not, Merger Sub in the aggregate, reasonably be expected to delay the Acceptance Date by more than ten Business Days after the first public dissemination of notice of any such modification. Except as expressly provided in this subsection (b), MergerSub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for tendered shares. Notwithstanding the CVR Trustforegoing, ParentMergerSub shall extend the Offer at any time, and from time to time: (1) if at the then-scheduled expiration date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived, until such time as such conditions are satisfied or waived; provided that any extension shall be in increments of not more than three Business Days (unless a longer period of time is agreed to by the Company in writing, such agreement not to be unreasonably withheld); (2) for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer; or (3) if all of the Tender Offer Conditions are satisfied or waived, and Company Common Shares have been accepted for payment, but the number of Company Common Shares acquired by MergerSub (together with other Company Common Shares owned of record by the Buyer Parties or any of their respective affiliates, officers or directors, should Affiliates) represent less than 90% of the votes entitled to be discovered cast by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light holders of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares then outstanding number of Company Common Stock that Merger Sub becomes obligated Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to purchase the number of votes such holders have relative to holders of Company Common Shares in accordance with the terms of the Company Series D Preferred Shares), voting together as a class, for an aggregate period of not more than ten Business Days (for all such extensions pursuant to this clause (3)) as a “subsequent offering period” (the “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any date on which the Offer is scheduled to expire, MergerSub will accept for payment and pay for all Company Common Shares validly tendered and not validly withdrawn pursuant to the OfferOffer as soon as practicable after such date.
Appears in 2 contracts
Sources: Merger Agreement (Centro Properties LTD), Merger Agreement (New Plan Excel Realty Trust Inc)
The Offer. (a) Subject to the conditions provisions contained in the following sentence, Merger Sub shall commence (within the meaning of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of Rule 14d-2 under the events set forth in paragraphs (aExchange Act) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement. If the Company: (i) shall have fully cooperated with Parent in connection with the Offer and the preparation of the Offer Documents, including by promptly providing to Parent any comments regarding the Offer Documents from the Company and its advisors, and (ii) shall be prepared to file with the SEC, and to disseminate to holders of Company Common Stock, the Schedule 14D-9 on the date Parent files the Offer Documents with the SEC, then Parent shall cause Merger Sub to, and Merger Sub shall shall, commence the Offer within seven (7) Business Days after the date of this Agreement; provided, however, that Merger Sub shall not be required to commence the Offer if (w) any of the conditions set forth in clauses (a), (b), (c), (g), (h), (j), (k), (l) and (n) of Annex I shall not be satisfied, or (x) the Company shall not be prepared to file immediately with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 (the date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act, is referred to in this Agreement as the Securities and Exchange Commission (the "SEC"“Offer Commencement Date”). The obligations obligation of Merger Sub (and the obligation of Parent and to cause Merger Sub Sub) to accept for payment, and pay for, any shares of Company Common Stock validly tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date satisfaction of or (if permitted) waiver of (y) the Offer condition that there shall be the 25th business day following the commencement validly tendered (not including any shares of the Offer (the initial "Expiration Date," and any expiration time and date established Company Common Stock validly tendered pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent procedures for guaranteed delivery) and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the withdrawn a number of shares of Company Common Stock subject that, together with any shares of Company Common Stock owned by Parent or Merger Sub immediately prior to the OfferAcceptance Time, represents more than 50% of the Adjusted Outstanding Share Number (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the “Minimum Tender Condition (as defined in Exhibit ACondition”), add to and (z) the other conditions set forth in Exhibit A or modify any condition Annex I hereto (the Minimum Condition and the other conditions set forth in Exhibit A in any manner adverse Annex I are referred to collectively as the holders “Offer Conditions”). For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the sum of: (A) the aggregate number of shares of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse Stock issued and outstanding immediately prior to the holders Acceptance Time, plus (B) an additional number of shares up to (but not exceeding) the aggregate number of shares of Company Common Stock. Notwithstanding Stock issuable upon the foregoingconversion, Merger Sub may exchange or exercise, as applicable, of all options, warrants and other rights to acquire, or securities convertible into or exchangeable for, Company Common Stock that are outstanding immediately prior to the Acceptance Time (other than potential (but shall not be obligated toactual) dilution attributable to the Top-Up Option), without the consent of the Company and in its sole and absolute discretion, (A) from time . Subject to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On Conditions and the terms and subject to the conditions to the Offer that are set forth in of this Agreement, promptly after the Expiration Date, either Parent or shall cause Merger Sub shall to, and Merger Sub shall, (1) accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered (and not withdrawn withdrawn) pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly soon as practicable after its filing Merger Sub is permitted to do so under applicable Legal Requirements, and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b(2) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon pay the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, Price in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer exchange for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares each share of Company Common Stock that Merger Sub becomes obligated to purchase accepted for payment pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (U.S. Renal Care Inc), Merger Agreement (Dialysis Corp of America)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none ARTICLE X, (ii) all of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration clauses 2(a), (b), (c), (d), (e), (g), (h), and (i) of ANNEX I shall then be satisfied (in 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 waived by Parent 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 (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent and Acquisition Sub of the other conditions set forth in ANNEX I (collectively, the “Offer Conditions”), as soon as practicable after the Expiration Date, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be the 25th business day following the commencement made by means of the Offer an offer to purchase (the initial "Expiration Date," “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and any expiration time and date established pursuant to an authorized extension of the other Offer as so extended, shall also be defined herein as an "Expiration Date")Conditions. Parent and Merger Acquisition Sub expressly reserve the right to (i) increase the Offer Price, (ii) waive any condition to the Offer or modify Condition and (iii) make any other changes in the terms and conditions of the Offer; provided, except thathowever, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Parent and Acquisition Sub shall not (iA) reduce decrease the number of shares of Company Common Stock subject to the OfferOffer Price, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vB) change the form of consideration payable in the Offer or Offer, (viC) otherwise amend decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in any manner adverse addition to the holders Offer Conditions, (E) amend or modify any of Company Common Stockthe 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. Notwithstanding the foregoing, Merger Sub The Offer may (but shall not be obligated to)terminated prior to the Expiration Date unless this Agreement is terminated in accordance with ARTICLE X.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, without the consent 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 Company Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in its sole accordance with this Agreement, the date and absolute discretiontime 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”).
(Ae) The Offer shall be extended from time to time extend the Offer if, at as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the conditions of the other Offer shall Conditions have not have been satisfied satisfied, or waived until such time as such conditions are satisfied or waived to the extent by Parent and Acquisition Sub if permitted by this Agreement; (B) hereunder, then Acquisition Sub shall extend the Offer for one or more periods of not more than 20 Business Days (subject to the foregoing, 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 ARTICLE X); and
(ii) Acquisition Sub shall extend, and Parent shall cause Acquisition Sub to extend, the Offer for the minimum period required by any rule, regulationApplicable Law, interpretation or position of the SEC applicable to or its staff or the Offer; NYSE or its staff.
(Cf) extend Without limiting the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period other provisions of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after if at any time during the Expiration Dateperiod between the date of this Agreement and the time when Acquisition Sub accepts, either Parent or Merger Sub shall accept for the first time, for payment Shares validly tendered and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment not properly withdrawn pursuant to the Offer (the "“Offer Acceptance Date"Time”), all any change in the outstanding shares of capital stock of the Company Common Stock validly tendered shall occur by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the Offer 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 event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition 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 pursuant to the Offer that Parent and Merger shall cause any depositary acting on behalf of Acquisition Sub are permitted to accept and pay for under applicable lawreturn, in accordance with Applicable Law, all tendered Shares to the record holders thereof.
(bh) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Acquisition Sub shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall contain an offer to purchase and exchange and the “Schedule TO”) that will contain or incorporate by reference all or part the Offer to Purchase and form of the Registration Statement and a related letter of transmittal and summary advertisement (such 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 constitute the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "“Offer Documents")”) filed by either Parent or Acquisition Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Law. Each of Parent, Merger Acquisition Sub and the Company shall agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Parent and Acquisition Sub and the Company shall take further agree to use all steps necessary reasonable efforts to amend or supplement the Offer Documents and to promptly cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to promptly be disseminated to the Company's stockholdersStockholders, in each case as and to the extent required by Applicable Law. The Company shall promptly furnish or deemed advisable under applicable federal securities laws. Each 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 parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after Shares. The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination SEC, and Parent and Acquisition Sub agree to the stockholders of the Companyconsider in good faith any such comments. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Acquisition Sub agree to provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel with any written comments (and orally, any oral comments), Parent, Merger Acquisition Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or comments. Parent and Merger Acquisition Sub and their counsel, respectively, prior to responding shall respond promptly to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, comments of the issuance of any stop order, SEC or of the suspension of the qualification of the CVR Certificates issuable in connection its staff with respect to the Offer for offering Documents or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(ci) Parent shall provide or cause to be provided to Merger Acquisition Sub on a timely basis all of the funds necessary to purchase any shares of Company Common Stock Shares that Merger Acquisition Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Athlon Energy Inc.), Merger Agreement (Encana Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs subparagraphs (a) through (e) or (hd) of Exhibit A hereto Annex I shall have occurred and be continuing and not have been waived by Parent or be existingMerger Sub, as promptly as reasonably practicable but and, in no event later than any event, within ten business days after (10) Business Days of the date of the public announcement of this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer as promptly as practicable after the date of this Agreement. The date on which Merger Sub commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”. Each share of Company Common Stock accepted by Merger Sub in accordance with the terms and regulations subject to the conditions of the Securities and Exchange Commission (Offer shall be purchased for cash at the "SEC")Offer Price. The obligations of Parent and Merger Sub to accept for payment, payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for, ) any shares of Company Common Stock validly tendered pursuant on or prior to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (as it may be extended in accordance with this Agreement) and not properly withdrawn shall be subject to (i) there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer (as so extended, shall also it may be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (iextended in accordance with this Agreement) reduce the that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent or any of its Subsidiaries, represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis (the “Minimum Condition”), and (ii) the other events or conditions set forth in Annex I. Subject to the terms and conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer promptly after expiration of the Offer; provided, however, that (i) if on the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended in accordance with this Agreement), any of the events or conditions to the Offer set forth on Annex I shall exist and, subject to the Offerprovisions of this Agreement, shall not have been waived by Merger Sub, Merger Sub expressly reserves the right to (ii) reduce and, in such case, Parent shall cause Merger Sub to), from time to time, extend the Offer Price for additional successive periods of up to twenty (20) Business Days per extension (with the length of such periods to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit Adetermined by Parent), add to until all of the conditions set forth in Exhibit A Annex I are satisfied or modify any condition set forth validly waived in Exhibit A in any manner adverse order to permit the holders of Company Common StockAcceptance Time to occur, and (ivii) except as provided below in this Section 1.01(a), Merger Sub shall extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff of the SEC applicable to the Offer; . If less than 90% of the number of outstanding shares of Company Common Stock are accepted for purchase pursuant to the Offer, Merger Sub may, in its sole discretion (and without the consent of the Company or (C) extend the Offer any other Person), elect to provide for a "one or more subsequent offering period" periods (as provided by of up to twenty (20) Business Days in the aggregate) in accordance with Rule 14d-11 under the Exchange Act) for a period of three . Merger Sub expressly reserves the right from time to twenty business days in order time to acquire at least 90% waive any of the outstanding shares conditions set forth in Annex I (other than the Minimum Condition and the condition set forth in subparagraph (e) of Annex I) or to increase the Company Common Stock. On Offer Price or to make any other changes in the terms and subject to conditions of the conditions to Offer; provided that, without the Offer that are set forth in this Agreementprior written consent of the Company, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to not decrease the Offer (Price, change the "Acceptance Date")form of consideration payable in the Offer, all decrease the number of shares of Company Common Stock validly tendered and not withdrawn pursuant sought to be purchased in the Offer, change, modify or waive the Minimum Condition, impose additional conditions to the Offer that Parent and Merger Sub are or modify or change any condition to the Offer in a manner materially adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer, reduce the time period during which the Offer shall remain open or, except for any extension required or permitted hereunder, extend or otherwise change the expiration date of the Offer, or amend, modify or supplement any other term of the Offer in any manner adverse to accept and pay for under applicable lawthe holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer.
(b) As Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable but and, in any event, no event later than ten business days after the date of Offer Commencement Date, in order to reflect the public announcement execution of this AgreementAgreement and the terms hereof, the Company Parent shall file or cause the CVR Trust (as defined in Section 5.16 (a)) to file be filed with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part a form of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and schedule together with the documents included therein pursuant to which the Offer will be made (including the Registration Statement)is made, together with and any amendments and supplements or amendments thereto, the "“Offer Documents"”). Each of ParentSubject to the Company’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. Parent and Merger Sub, on the one hand, and the Company shall 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 such information it shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), Law. Parent and each of Parent, Merger Sub and the Company shall further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and disseminated to holders of shares of Company Common Stock as required by applicable U.S. federal securities Laws. The Company shall 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 as so amended or supplemented to be disseminated to the Company's stockholders, contained in each case as this Section 2.1(b). The Company and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the CompanySEC. In addition, Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counselcounsel with (i) any comments or communications, whether written or Parent and Merger Sub and their counseloral, respectively, in writing any written comments (and orally, any oral comments), that Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or Merger Sub’s, as the case may be, receipt of such comments, and (ii) a reasonable opportunity to participate in the response of Parent or Merger Sub to those comments and shall consult with to provide comments on that response.
(c) In the Company and its counselevent this Agreement is terminated pursuant to Section 8.1 prior to the Acceptance Time, or Parent and Merger Sub and their counsel, respectively, prior to responding to shall promptly terminate the Offer without accepting any such comments. The shares of Company will advise Parent Common Stock previously tendered and Merger Sub shall promptly after it receives notice that return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the Registration Statement and registered holders thereof.
(d) If any supplement or amendment that has been filed have become effective, portion of the issuance Offer Price is to be paid to a Person other than the Person in whose name the tendered shares of Company Common Stock are registered, the amount of any stop orderstock transfer or other similar Taxes (whether imposed on the registered holder(s), or such other Person, or otherwise) payable on account of the suspension of the qualification of the CVR Certificates issuable in connection with such transfer to such other Person shall be deducted from the Offer Price for offering or sale the exchange of such shares of Company Common Stock in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating unless evidence satisfactory to the Company, Merger Sub or of the CVR Trust, Parentpayment of such Taxes, or any of their respective affiliatesexemption therefrom, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyis submitted.
(ce) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Superior Well Services, INC), Merger Agreement (Nabors Industries LTD)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant Section 8.1 and no event shall have occurred and no circumstance shall exist which would result in a failure to Article VII hereof and none satisfy any of the conditions or events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existing(the "Offer Conditions"), as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub Purchaser shall commence the Offer as soon as practicable after the date hereof, and in any event within five business days from the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")date hereof. The obligations obligation of Parent and Merger Sub Purchaser to accept for payment, and pay for, any shares of Company Common Stock payment Shares tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial expiration date satisfaction of the Offer shall be Conditions. Purchaser expressly reserves the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extendedright, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right in its sole discretion, to waive any such condition to the Offer or modify and make any other changes in the terms and conditions of the Offer, except provided that, without unless previously approved by the written consent of the CompanyCompany in writing, Merger Sub shall not (i) reduce Purchaser may not amend or waive the number of shares of Company Common Stock subject to the OfferMinimum Condition, (ii) reduce no change may be made which decreases the Offer Price to be paid pursuant to price per Share payable in the Offer, (iii) there shall be no change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by adding consideration), (iv) there shall be no reduction in the maximum number of Shares to be purchased in the Offer, or (viv) otherwise amend there shall be no imposition of any condition to the Offer in any manner addition to those set forth herein which is materially adverse to the holders of Company Common Stockthe Shares. Notwithstanding Purchaser covenants and agrees that, subject to the foregoingterms and conditions of this Agreement, Merger Sub may including the Offer Conditions, it will accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as promptly as reasonably practicable; provided, that (but x) at each scheduled expiration date of the Offer prior to the date 90 days from the date hereof, if any of the Offer Conditions shall not be obligated to)satisfied or waived, without the consent of the Company and in its sole and absolute discretion, (A) from time to time Purchaser shall extend the Offer if, at until the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as date on which such conditions are satisfied or waived then reasonably expected by Purchaser to the extent permitted by this Agreement; be satisfied, (By) Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or Offer and (Cz) Purchaser may extend the Offer for a "subsequent offering period" up to the tenth business day beyond the latest expiration date that would otherwise be permitted under clause (as provided by Rule 14d-11 under x) or (y) of this sentence. The initial expiration date of the Exchange Act) for a period of three to twenty Offer shall be 20 business days in order to acquire at least 90% from the commencement of the outstanding shares Offer in accordance with applicable law. Subject to the foregoing, it is agreed that the Offer Conditions are for the benefit of Purchaser and may be asserted by Purchaser regardless of the Company Common Stock. On circumstances giving rise to any such condition (including any action or inaction by Purchaser or Parent not inconsistent with the terms and subject hereof) or, except with respect to the conditions Minimum Condition, may be waived by Purchaser, in whole or in part at any time and from time to the Offer that are set forth time, in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawits sole discretion.
(b) As promptly soon as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreementhereof, the Company shall cause the CVR Trust (as defined and in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On any event within five business days from the date of commencement of the Offerhereof, Purchaser and Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a their Tender Offer Statement on Schedule TO 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall Offer with the Securities and Exchange Commission (the "SEC"). The Schedule 14D-1 will contain an offer Offer to purchase Purchase and exchange and will contain or incorporate by reference all or part forms of the Registration Statement and a related letter of transmittal (which Schedule 14D-1, Offer to Purchase and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)other documents, together with any further supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). Each of Parent, Merger Sub Purchaser and the Company shall each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub Parent and the Company shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and Purchaser agree to provide the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing with any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, that may receive be received from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companythereof.
(c) Parent Notwithstanding any other provision contained herein, the Offer shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares terminate upon termination of Company Common Stock that Merger Sub becomes obligated to purchase this Agreement pursuant to the OfferSection 8.1.
Appears in 2 contracts
Sources: Merger Agreement (Microdyne Corp), Merger Agreement (L 3 Communications Holdings Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and none of the events set forth in paragraphs Annex I hereto (athe "Tender Offer Conditions") through (e) or (h) of Exhibit A hereto shall have occurred or be existingoccurred, as promptly as reasonably practicable practicable, but in no event later than ten the fifth business days after day from the date of the public announcement of this Agreement, Parent and Merger Sub shall cause the Purchaser to commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended, including the rules and regulations of promulgated thereunder (the "Exchange Act")) an offer to purchase all outstanding Shares at the Offer Price, shall, after affording the Company a reasonable opportunity to review and comment thereon, file all necessary documents with the Securities and Exchange Commission (the "SEC") in connection with the Offer (the "Offer Documents"), and shall use reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligations obligation of Parent and Merger Sub the Purchaser to accept for payment, and payment or pay for, for any shares of Company Common Stock Shares tendered pursuant thereto will be subject only to the Offer are subject to satisfaction of the conditions set forth in Exhibit A. The initial expiration date of Annex I hereto.
(b) Without the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub the Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce decrease the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common StockShares. Notwithstanding The Offer shall remain open until the foregoingdate 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"), Merger Sub 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. 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 shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after such Expiration Date; provided that, (but 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 obligated to), extended from time to time without the consent of the Company and in its sole and absolute discretion, (A) from for such period of time as is reasonably expected by the Purchaser to time extend be necessary to satisfy the unsatisfied conditions; provided further that the Offer if, at may be extended by the scheduled Expiration Date, any Purchaser without the consent of the conditions 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; (B) extend the Offer Company for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or , and (Cii) extend if all of the Tender Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least Conditions are satisfied but less than 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares have been validly tendered and not withdrawn pursuant in the Offer, the Purchaser shall be required to extend the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten one additional business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 day (or such other appropriate form longer time as may be required thereunder) (the "Registration Statement") agreed to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO Purchaser and the documents included therein pursuant to which the Offer will be made Company (including the Registration Statement), together with any supplements or amendments thereto, the an "Offer DocumentsExtension"). Each of ParentIf, Merger Sub 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 promptly correct 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 information provided by it reason. Without the prior written consent of the Company, the Purchaser shall not waive the Minimum Condition or accept for use payment or pay for any Shares in the Offer Documents if and to if, as a result, Purchaser would acquire less than the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue number of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall take all steps Shares necessary to amend or supplement satisfy the Minimum Condition. It is agreed that the Tender Offer Documents and to cause Conditions are solely for the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each benefit of the parties hereto shall use all reasonable efforts to have Purchaser and may be asserted by the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance Purchaser regardless of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding circumstances giving rise to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that condition (but not including any action or inaction by the Registration Statement and any supplement Purchaser) or amendment that has been filed have become effectivemay (except as otherwise specifically provided in this Agreement), of but need not, be waived by the issuance of any stop orderPurchaser, in whole or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, part at any time prior and from time to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements thereintime, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyits sole discretion.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Pacific Scientific Co), Merger Agreement (Pacific Scientific Co)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable practicable, but in no event later than ten five (5) business days after the date of the public announcement by Buyer and Seller of this Agreement, Parent and Merger Sub Buyer shall cause Newco to commence the Offer. The initial expiration date for the Offer within shall be the meaning 20th business day following the commencement of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer. The obligations obligation of Parent and Merger Sub Newco to accept for payment, and pay for, any shares of Company Seller Common Stock tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. The initial EXHIBIT C hereto (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Buyer in its sole discretion) and to the terms and conditions of this Agreement.
(b) Buyer may, without the consent of Seller, cause Newco to (A) extend the Offer, if at the scheduled or extended expiration date of the Offer shall be the 25th business day following the commencement any of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but Conditions shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC U.S. Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer; Offer or any period required by applicable law and (C) extend the Offer on one or more occasions for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a an aggregate period of three to twenty not more than ten (10) business days in order to acquire beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding shares of the Company Seller Common Stock. On Subject to the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Buyer shall cause Newco to accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Seller Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted Newco becomes obligated to accept for payment and pay for under applicable lawfor, pursuant to the Offer as promptly as practicable after the expiration of the Offer.
(bc) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Buyer shall cause Newco to file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO 14D-1 (the "SCHEDULE 14D-1") with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will shall be made (including the Registration Statement)made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer Documents shall comply as to form in all material respects with the requirements of the Exchange Act (as defined herein) and the rules and regulations promulgated thereunder and the Offer Documents, on the date first published, sent or given to the holders of shares of Seller Common Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of ParentBuyer, Merger Sub Newco and the Company shall Seller agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall Buyer further agrees to cause Newco to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Seller Common Stock, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after Seller and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders holders of the CompanySeller Common Stock. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Buyer agrees to cause Newco to provide to the Company Seller and its counselcounsel any comments Buyer, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub Newco or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Applied Opsec Corp), Merger Agreement (Optical Security Group Inc)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable but in no event later than ten five business days after the date announcement of the public announcement execution of this Agreement, the Purchaser shall, and Parent and Merger Sub shall cause the Purchaser to, commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act")) the Offer. ------------ The obligations obligation of the Purchaser to, and of Parent and Merger Sub to cause the Purchaser to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the (i) the Minimum Condition (as defined in Annex A), (ii) the condition that the Purchaser shall have received the Financing (as defined below) contemplated by the commitment letter dated September 11, 1997 (the "Financing Commitment Letter"), pursuant to which, subject to certain terms --------------------------- and conditions thereof, the lenders named therein have committed to provide all of the Financing (the "Financing") necessary to consummate the Offering and the --------- Merger and the transactions contemplated hereby (the "Financing Condition") and ------------------- (iii) conditions set forth in Annex A attached hereto and to the other conditions of this Agreement. On the terms and subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer and this Agreement, the Purchaser shall, and Parent shall be cause the 25th business day following Purchaser to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the commencement 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 (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub the Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price price per share of Common Stock to be paid pursuant to the Offer, (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit Annex A or modify any condition set forth in Exhibit A otherwise amend the Offer in any manner materially adverse to the holders of Company Common StockCompany's stockholders, (iv) except as provided below in this Section 1.01(a)the next two sentences, extend the Offer, or (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)the Purchaser may, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) extend the Offer for a period of not more than 10 business days beyond the initial expiration date of the Offer (which initial expiration date shall be 20 business days following commencement of the Offer), if on the date of such extension less than 90% of the outstanding shares of Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (ii) extend the Offer from time to time extend the Offer if, if at the scheduled Expiration Date, 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 the Offer Common Stock set forth in paragraphs (a), (b) and (e) of Annex A shall not have been be satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Biii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer; or Offer and (Civ) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) any reason for a period of three to twenty not more than 10 business days in order to acquire beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. In addition, the Purchaser shall at least 90% of the outstanding shares request of the Company Common Stock. On extend the terms and subject to Offer for five business days if at any scheduled expiration date of the Offer any of the conditions to the Offer Purchaser's obligation to purchase shares of Common Stock shall not be satisfied; provided, however, that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub Purchaser shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant not be required to extend the Offer (the "Acceptance Date")beyond November 30, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law1997.
(b) As promptly soon as reasonably practicable but in no event later than ten business days after on the date of the public announcement of this AgreementOffer is commenced, Parent and the Company Purchaser shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under a Tender Offer Statement on Schedule 14D-1 with respect to the Securities Act of 1933, as amended and Offer (together with all amendments and supplements thereto and including the rules and regulations promulgated thereunder (exhibits thereto, the "Securities ActSchedule 14D-l"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement Schedule -------------- 14D-1 will include a preliminary prospectus containing disclosure sufficient to satisfy the information required under requirements of Rule 14d-4(b) 13e-3 under the Exchange Act. On The Schedule 14D-1 will include, as exhibits, the offer to purchase pursuant to which the Offer shall be made (the "Offer to -------- Purchase") and a form of letter of transmittal and summary advertisement -------- (collectively, together with any amendments and supplements thereto, the "Offer ----- Documents"). The Offer Documents will comply in all material respects with the --------- provisions of applicable federal securities laws and, on the date of commencement of the Offer, Parent and Merger Sub shall file filed with the SECSEC and on the date first published, and cause to be disseminated sent or given to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall not contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement 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 party that discovers such 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 promptly notify furnish to Parent and the other party Purchaser all information concerning the Company and an appropriate amendment its affiliates required to be set forth in the Offer Documents. The information supplied by the Company to Parent or supplement describing such information shall 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 promptly stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Each of Parent and the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC andand to be disseminated to holders of the Shares, in each case as and to the extent required by applicable lawfederal securities laws. Each of Parent and the Purchaser, on the one hand, and the Company, on the other hand, 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 and 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 the stockholders holders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant Shares, in each case as and to the Offerextent required by applicable federal securities laws. The Company and its counsel shall be given the opportunity to review the Schedule 14D-1 (including, without limitation, all documents filed therewith as exhibits) before it is filed with the SEC. In addition, Parent and the Purchaser will provide the Company and its counsel in writing with any comments, whether written or oral, Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
Appears in 2 contracts
Sources: Merger Agreement (Hain Food Group Inc), Merger Agreement (Hain Food Group Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 8.01, as promptly as reasonably practicable but and in no any event later than ten business days after within one Business Day following the date of hereof (or such later date as the public announcement parties may mutually agree in writing), Merger Sub (i) shall amend the Offer to reflect the execution of this Agreement, Parent (ii) shall file an amendment to its Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and Merger Sub shall commence the Offer within the meaning of the applicable rules all other necessary documents and regulations of exhibits with the Securities and Exchange Commission (the "“SEC")”) and make all deliveries, filings, publications, mailings and telephonic notices required to be made in connection with the Offer under the Federal securities laws, including Regulations 14D and 14E of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”) (such documents filed or required to be filed with the SEC and such other filings, deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the “Offer Documents”) and (iii) shall use its reasonable best efforts to consummate the Offer. The obligations of Parent and will cause Merger Sub to accept for paymentpayment and pay for any shares of Company Common Stock tendered pursuant to the Offer, subject only to the condition that there shall be validly tendered and not withdrawn prior to the expiration of the Offer such number of shares of Company Common Stock that, when added to the shares of Company Common Stock already owned by Parent or any of its Subsidiaries, would constitute at least a majority of the shares of Company Common Stock outstanding determined on a Fully Diluted Basis on the date of expiration of the Offer (the “Minimum Condition”) and to the other conditions set forth in Annex I hereto (together with the Minimum Condition, collectively, the “Tender Offer Conditions”).
(b) Without the prior written consent of the Company, Merger Sub shall not (and Parent shall cause Merger Sub not to) decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in a manner that is adverse to the holders of shares of Company Common Stock, except as provided in this Agreement. The Offer shall remain open until the date that is five Business Days after the amendment of the Offer (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended as may be required by applicable Law or in accordance with the immediately following sentence, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that Merger Sub may (or, at the Company’s option, if at least 80% of the outstanding shares of Company Common Stock on a Fully Diluted Basis have been tendered and accepted for payment by Merger Sub, shall) provide for a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligations that Merger Sub immediately accept and promptly pay for all shares of Company Common Stock tendered during the initial offering period and immediately accept and promptly pay for any shares of Company Common Stock tendered during such subsequent offering period). If, at any Expiration Date, any of the Tender Offer Conditions are not satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer from time to time, each such extension not to exceed such number of days that Merger Sub reasonably believes is necessary to cause the Tender Offer Conditions to be satisfied (but in any event not more than 15 Business Days for all such extensions, unless, in each case, the parties shall otherwise mutually agree in writing). Under no circumstances shall Parent or Merger Sub waive the Minimum Condition. Subject to the terms of the Offer and this Agreement and the satisfaction of the Tender Offer Conditions as of any Expiration Date, including the Minimum Condition, Parent will cause Merger Sub to accept for payment and pay for any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly after such Expiration Date, regardless of the number of shares of Company Common Stock tendered in the Offer (such date as Merger Sub shall be obligated to accept for payment any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer, the “Acceptance Date”). For the avoidance of doubt, and pay fornotwithstanding anything in this Agreement to the contrary, Merger Sub shall not (and Parent shall cause Merger Sub not to) accept for payment any shares of Company Common Stock tendered pursuant to the Offer are subject to unless the conditions set forth in Exhibit A. The initial expiration date Minimum Condition shall have been satisfied.
(c) Each of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve Sub, on the right to waive any condition to the Offer or modify the terms of the Offerone hand, except that, without the written consent of and the Company, Merger Sub shall not (i) reduce on the number of shares of Company Common Stock subject other hand, agrees to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, correct promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to stockholders of the Company's stockholders, in each case case, as and to the extent required by or deemed advisable under applicable federal Federal securities lawsLaws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to in advance of their filing with the SEC or and dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel copies in writing of any written comments (and orally, shall inform the Company of any oral comments), comments that Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information its counsel shall be promptly filed with the SEC and, given a reasonable opportunity to the extent required by applicable law, disseminated to the stockholders of the Companyreview any such written and oral comments and proposed responses.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Iron Acquisition Corp), Merger Agreement (Engelhard Corp)
The Offer. (a) Subject (i) Parent shall cause Purchaser to, and Purchaser shall, amend the Pending Offer to reflect the conditions execution of this Agreement and provided that this Agreement shall not have been terminated in accordance with its the terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable after the date of this Agreement (but in no event later than ten business days after the fifteenth (15th) Business Day following the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The date on which Purchaser amends the Pending Offer is referred to in this Agreement as the “Offer Amendment Date.” The obligations of Purchaser (and of Parent and Merger Sub to cause Purchaser) to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are will be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A. The initial expiration date of Annex I (the “Offer Conditions”). Unless extended in accordance with Section 1.1(a)(ii), the Offer shall be expire on the 25th business day following later of (A) one (1) Business Day after the commencement of Registration Statement is declared effective or (B) twenty (20) Business Days after the Offer Amendment Date (the initial "“Initial Expiration Date," and any expiration ”), or, if the Offer has been extended in accordance with Section 1.1(a)(ii), at the time and date established pursuant to an authorized extension of which the Offer as has been so extended, shall also be defined herein as an "extended (the Initial Expiration Date", or such later time and date to which the Offer has been extended in accordance with Section 1.1(a)(ii), the “Expiration Date”). Parent and Merger Sub Purchaser expressly reserve reserves the right (but will not be obligated) at any time or from time to time in its sole discretion to waive any condition to the Offer Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall Purchaser will not (iA) reduce decrease the number Cash Consideration, amend the terms of shares the CVR or CVR Agreement, or change the form of Company Common Stock subject to the consideration payable in the Offer, (iiB) reduce decrease the Offer Price to be paid number of Shares sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition or the CVR Condition (as defined in Exhibit AAnnex I), (D) add to the conditions set forth in Exhibit A or on Annex I, (E) modify any condition the conditions set forth on Annex I in Exhibit A in any a manner adverse to the holders of Company Common StockShares, (ivF) extend the Expiration Date of the Offer except as provided below in this required or permitted by Section 1.01(a1.1(a)(ii), extend the Offer, (vG) make any other change the form of consideration payable in the Offer terms or (vi) otherwise amend conditions of the Offer in any manner that is adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; Shares or (CH) extend increase the Offer for a "subsequent offering period" (as provided Cash Consideration by Rule 14d-11 under the Exchange Act) for a period an increment of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawless than $0.25.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Genzyme Corp), Agreement and Plan of Merger (Sanofi-Aventis)
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A hereto shall exist or have occurred or and be existingcontinuing, as Purchaser shall, and Parent shall cause Purchaser to, promptly as reasonably practicable (but in no event later than ten business days the tenth (10th) Business Day after the date of hereof, provided that the public announcement of this Agreement, Parent Company shall be prepared to disseminate to its stockholders its Schedule 14d-9 and Merger Sub shall Schedule 14f-1 within such time period) commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”)) the Offer to purchase all outstanding Shares at the Offer Price. The obligations of Purchaser (and of Parent and Merger Sub to cause Purchaser) to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A. A (the “Offer Conditions”). The initial expiration date of the Offer shall be the 25th business twentieth (20th) Business Day following (and including the day following of) the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub Purchaser expressly reserve reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any condition to the Offer Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub Purchaser shall not (iA) reduce decrease the number Offer Price or change the form of shares of Company Common Stock subject to the consideration payable in the Offer, (iiB) reduce decrease the Offer Price to be paid number of Shares sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition (as defined in Exhibit A), (D) add to the conditions set forth in on Exhibit A or A, (E) modify any condition the conditions set forth in on Exhibit A in any a manner materially adverse to the holders of Company Common StockShares, (ivF) extend the expiration date of the Offer except as provided below in this required or permitted by Section 1.01(a), extend the Offer, 1.1(a)(ii) or (vG) make any other change the form of consideration payable in the Offer terms or (vi) otherwise amend conditions of the Offer in any manner which is adverse to the holders of Company Common StockShares.
(ii) Subject to the terms and conditions of this Agreement and to the satisfaction or waiver by Purchaser of the Offer Conditions as of the time of any scheduled expiration of the Offer, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such scheduled expiration and Purchaser shall, and Parent shall cause Purchaser to, immediately accept and promptly pay for all Shares as they are validly tendered during any subsequent offer period. Notwithstanding the foregoingPurchaser may, Merger Sub may (but shall not be obligated to), in its sole discretion and without the consent of the Company and in its sole and absolute discretionCompany, (A) from time to time extend the Offer if, for one or more periods of time of up to twenty (20) Business Days per extension if at any scheduled expiration of the scheduled Expiration Date, Offer any of the conditions Offer Conditions are not satisfied (provided, that if at any such scheduled expiration of the Offer, the Minimum Tender Condition is not satisfied but all other Offer shall not have been satisfied or waived until such time as such conditions Conditions are satisfied or waived waived, then Purchaser shall not be entitled to extend the extent permitted by this Agreement; Offer for more than thirty (30) Business Days in the aggregate, unless one or more of such other Offer Conditions ceases to be satisfied), (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof or The Nasdaq Stock Market (“Nasdaq”) applicable to the Offer; , or (C) extend after consultation with the Company, elect (or elect not) to provide a subsequent offering period for the Offer for a "subsequent offering period" (as provided by in accordance with Rule 14d-11 under the Exchange Act) for a period of three . The Offer Price may be increased, and the Offer may be extended to twenty business days the extent required by Law in order to acquire at least 90% connection with such increase in the Offer Price, in each case without the consent of the outstanding shares of the Company Common Stock. On Company.
(iii) Subject to the terms and subject conditions of this Agreement:
(A) Purchaser shall extend the Offer on one or more occasions for periods determined by Purchaser of up to twenty (20) Business Days per extension if, at any scheduled expiration of the Offer, any of the Offer Conditions has not been satisfied or waived; provided, that if, at any scheduled expiration of the Offer, any of the circumstances described in the following clauses (x) or (y) exists, Purchaser shall not be obligated to extend the Offer unless required by applicable Law or any applicable rule or regulation of Nasdaq (but shall be entitled to extend the Offer to the conditions to extent permitted by clause (ii) above): (x) the Minimum Tender Condition is not satisfied, but all other Offer Conditions are satisfied or waived; or (y) the Offer that are Condition set forth in this AgreementParagraph 2(a) of Exhibit A is neither satisfied nor waived (other than by reason of a judgment, promptly injunction or order that is not final or remains subject to appeal), and Parent and Purchaser shall have complied with their obligation under Sections 6.6(b) and (c); and
(B) if the Company delivers a Qualifying Proposal Notice and, on the date of delivery of such Qualifying Proposal Notice, the then scheduled expiration of the Offer is a date less than five (5) Business Days after such date of delivery, then (unless such Qualifying Proposal shall have been withdrawn prior to such then scheduled expiration of the Offer) Purchaser shall extend the Offer so that the Expiration Date, either Parent Date does not occur until on or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub that is five (as 5) Business Days following the case may be) first accepts shares for payment pursuant date of delivery of the Qualifying Proposal Notice; provided, however, that in no circumstance shall Purchaser be required to extend the Offer (1) beyond the "Acceptance Date")Outside Date or (2) at any time that Parent, all shares of Purchaser or the Company Common Stock validly tendered is permitted to terminate and not withdrawn terminates this Agreement pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawArticle VIII.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC, and or cause to be disseminated to filed with the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (collectively with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, Offer which shall contain an the offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the other ancillary Offer documents included therein and instruments pursuant to which the Offer will be made (including the Registration Statement), together collectively with any supplements or amendments thereto, the "“Offer Documents"”). Each of Parent, Merger Sub The Company and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on Purchaser agree (i) to provide the one handCompany with, and to consult with the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orallyregarding, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, comments that may receive be received from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments thereof and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding thereto and (ii) to provide the Company with any such commentscomments or responses thereto. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, If at any time prior to the time of consummation of the OfferClosing, any information relating to the Offer, the Merger, the Company, Merger Sub or the CVR Trust, Parent, Purchaser or any of their respective affiliatesAffiliates, officers directors or directorsofficers, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration StatementOffer Documents, so that the Offer Documents shall not contain any of such documents would not include any misstatement 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 are made, not misleading, the party that which discovers such information shall promptly notify the other party party, and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, and disseminated to the stockholders of the Company, as and to the extent required by applicable Law.
(c) Parent shall provide or cause to be provided to Merger Sub Purchaser on a timely basis the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Sirtris Pharmaceuticals, Inc.), Merger Agreement (Glaxosmithkline PLC)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII X hereof and so long as none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or be existingMerger Sub), as promptly as reasonably practicable practicable, but in no event later than ten the fifth business days day after the date of the public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to at the Offer are subject to the conditions set forth in Exhibit A. Price. The initial expiration date of for the Offer shall be the 25th twentieth business day following the commencement of the Offer. The obligations of Merger Sub to accept for payment and to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer (Conditions, any of which may be waived by Parent or Merger Sub in their sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension Minimum Condition without the prior written consent of the 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 so extendedexpressly set forth herein, shall also may be defined herein as an "Expiration Date")waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer; PROVIDED HOWEVER, except that, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to be purchased in the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common StockTender Offer Conditions, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (viv) otherwise amend make any other change in the terms of the Offer in any manner which is materially adverse to the holders of Company Common Stock. Notwithstanding the foregoingforegoing sentence, Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretionCompany, (A) 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 from time to time extend up to a maximum of an aggregate of 30 days beyond the Offer if, at the scheduled Expiration Date, any first day all of the conditions of the Tender Offer shall not Conditions have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; met, and/or (BC) 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; . Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of 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, the Regulatory Conditions (Cas 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 extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under from time to time, subject to the Exchange Act) for a period right of three to twenty business days in order to acquire at least 90% of the outstanding shares of Parent, Merger Sub or the Company Common Stockto terminate this Agreement pursuant to the terms hereof. On Upon the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SECshall, and Parent shall cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall to, promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been purchase all shares of Common Stock which are validly tendered on or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation expiration of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent Offer and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) withdrawn. Parent shall provide provide, or cause to be provided provided, to Merger Sub on a timely basis the all funds necessary to purchase any accept for payment, and pay for, all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Bison Acquisition Corp), Merger Agreement (Entertainment Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs paragraph (a) through (e) or (h2)(iii) of Exhibit A hereto Annex I shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable but (and in no any event later than ten business days within 10 Business Days) after the date of the public announcement of this Agreement, Purchaser shall (and Parent and Merger Sub shall cause Purchaser to) commence the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase for cash any and all outstanding Shares at the Offer Price.
(b) Subject to the terms and conditions of this Agreement and the Offer, promptly after the latest of (i) the earliest date as of which Purchaser is permitted under applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub Law to accept for payment, payment Shares validly tendered and pay for, any shares of Company Common Stock tendered not withdrawn pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the earliest date as of which each of the conditions and requirements set forth in Annex I (the “Offer Price to be paid pursuant to the OfferConditions”) has been satisfied, or waived by Parent or Purchaser, and (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Purchaser shall (and Parent or Merger Sub shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub pay for all Shares (as the case may bewithout interest) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer. The obligation of Purchaser to accept for payment and pay for Shares (without interest) tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction, or waiver by Parent or Purchaser, of each of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains, among other things, the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I to this Agreement. Parent and Purchaser expressly reserve the right to (i) increase the Offer Price and (ii) waive any Offer Conditions and make any other changes to the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, neither Parent nor Purchaser shall (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer,
Appears in 2 contracts
Sources: Merger Agreement (GCP Sunshine Acquisition, Inc. A Delaware Corp), Agreement and Plan of Merger (American Land Lease Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have --------- been terminated in accordance with its terms pursuant to Article VII hereof Section 7.01, Merger Subsidiary shall, and none Parent shall cause Merger Subsidiary to, commence within the meaning of Rule 14d-2 under the events set forth in paragraphs Exchange Act (aas hereinafter defined) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten five business days after the initial public announcement of Parent's intention to commence the Offer. The Offer shall have a scheduled Expiration date 20 business days following commencement of the public announcement Offer (the "Initial Expiration Date"). Notwithstanding any contrary provision of this Agreement, Parent and Merger Sub shall commence Subsidiary (i) if so requested by the Company at the direction of the Special Committee, will extend the Offer within for up to ten business days following in the meaning event upon the Initial Expiration Date, Merger Subsidiary shall not have accepted for payment Shares pursuant to the Offer as a result of one or more of the conditions set forth in Annex A hereto not having been satisfied or waived by Merger Subsidiary and (ii) at its discretion may determine from time to time to extend the Offer for no more than an aggregate of ten business days following the later of the Initial Expiration Date and the first expiration date thereafter on which all of the conditions set forth in Annex A shall have been satisfied or waived, if applicable, provided, however, that in the event that Parent 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 consumating 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 A shall not have been satisfied or waived. Parent shall not accept for payment any Shares tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares which, constitutes at least a majority of the Shares not beneficially owned by Parent or Merger Subsidiary on a fully diluted basis (the "Minimum Condition"). In addition to the Minimum Condition, the obligation of Parent to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto. Parent expressly reserves the right to increase the Per Share Amount. Without the prior consent of the Special Committee, Parent will not (i) decrease the Per Share Amount (ii) change the number of Shares to be purchased in the Offer (iii) change the form of the consideration payable in the Offer (iv) amend or add to the conditions to the Offer set forth in Annex A hereto; or (v) make any other change in the terms or conditions of the Offer which is adverse to the holders of Shares. Under no circumstances shall Parent waive the Minimum Condition. The Per Share Amount shall, subject to any applicable rules withholding of taxes, be net to the seller in cash, upon the terms and regulations subject to the conditions of the Offer. Following the satisfaction or waiver of the conditions to the Offer, Parent shall cause Merger Subsidiary to accept for payment and pay for, in accordance with the terms of the Offer, all Shares validly tendered pursuant to the Offer and not withdrawn, as soon as it is permitted to do so pursuant to applicable law.
(b) As soon as reasonably practicable on the date of commencement of the Offer, Parent shall file with the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not
(i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, 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 OfferOffer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, which including the exhibits thereto (together with all amendments and supplements thereto, the "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 Purchase") and exchange and will contain or incorporate by reference all or part forms of the Registration Statement and a related letter of transmittal and any related summary advertisement (such the Schedule TO and 14D-1, the documents included therein pursuant to which Schedule 13E-3, the Offer will be made (including the Registration Statement)to Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of Parent, Merger Sub Subsidiary and the Company shall 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 such information which shall have originally been become materially incorrect or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)misleading, and each of Parent, Parent and Merger Sub and the Company shall Subsidiary further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 and the Schedule 13E-3 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities lawsLaw (as defined hereinafter). Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effectiveThe Company, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto Special Committee and their respective counsel shall be given a reasonable the opportunity to review and comment upon on the Offer Documents and any amendments thereto prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Subsidiary shall provide to the Company and its counselCompany, or Parent and Merger Sub the Special Committee and their counsel, respectively, in writing respective counsel with a copy of any written comments (and orally, or telephonic notification of any oral comments), Parent, comments Parent or Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, Subsidiary may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments thereof. Parent and its counsel shall consult with provide the Company and its counsel, or Parent and Merger Sub the Special Committee and their counsel, respectively, prior respective counsel with a reasonable opportunity to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable participate in connection all communications with the Offer for offering or sale in SEC and its staff, including any jurisdiction. Ifmeetings and telephone conferences, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub Transactions or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companythis Agreement.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Rexel Sa), Merger Agreement (Pinault Printemps Redoute Sa Et Al)
The Offer. (a) Subject to the conditions provisions of this Agreement Agreement, Merger Sub will, and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingCompuware will cause Merger Sub to, as promptly as reasonably practicable but in no event later than ten within five business days after the public announcement (on the date hereof or the following business day) of the public announcement execution of this Agreement, Parent and Merger Sub shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act")) the Offer. The obligations obligation of Parent and Merger Sub to, and of Compuware to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are will be subject to the conditions set forth in Exhibit A. The initial expiration date A and to the terms and conditions of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")this Agreement. Parent and Merger Sub expressly reserve reserves the right to waive any condition conditions to the Offer, to increase the price per Share payable in the Offer, to extend the duration of the Offer (subject to the limitations set forth in this Section), or modify to make any other changes in the terms and conditions of the Offer; provided, except thathowever, that without the written consent of the CompanyViasoft's consent, Merger Sub shall not no such change may be made which (i) reduce decreases the number of shares of Company Common Stock subject to price per Share payable in the Offer, (ii) reduce reduces the Offer Price minimum (including by waiver of the Minimum Tender Condition, as defined in Exhibit A) or maximum number of Shares to be paid pursuant to purchased in the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add imposes conditions to the conditions Offer in addition to those set forth in Exhibit A A, (iv) changes the form of consideration payable in the Offer, (v) extends the expiration of the Offer (the "Expiration Date") (which will initially be twenty business days following the commencement of the Offer) beyond five business days following the initial expiration of the Offer except (A) as required by the Exchange Act or modify (B) in the case of any such greater than five day extension of the Offer, in Merger Sub's reasonable judgment, it is reasonably likely that during any such extension, any condition set forth in Exhibit A in any manner adverse (including the Minimum Tender Condition) which is not satisfied as of the date of such extension will be satisfied during such extension; provided that, without Viasoft's consent, the Expiration Date may not be extended pursuant to clause (B) of this sentence beyond twenty business days following the holders initial expiration of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend amends any other material terms of the Offer in any a manner materially adverse to Viasoft's shareholders. Subject to the holders terms and conditions of Company Common Stock. Notwithstanding this Agreement and the foregoingOffer (including, if the Offer is extended or amended, the terms and conditions of any such extension or amendment), Merger Sub may (but shall not be obligated to)will, without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Compuware will cause Merger Sub shall to, accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Viasoft Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted becomes obligated to accept for payment, and pay for under applicable lawfor, pursuant to the Offer as soon as practicable after the expiration of the Offer.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent Compuware and Merger Sub shall will file with the Securities and Exchange Commission (the "SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, ") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, which shall will contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, the "Offer Documents")) and will mail the Offer Documents to the shareholders of Viasoft. Compuware and Merger Sub agree that the Offer Documents will comply as to form in all material respects with the Exchange Act and the rules and regulations promulgated thereunder, and the Offer Documents, on the date first published, sent or given to Viasoft's shareholders, 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, except that no representation is made by Compuware or Merger Sub with respect to information supplied by Viasoft specifically for inclusion in the Offer Documents. Each of ParentCompuware, Merger Sub and the Company shall Viasoft agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall will have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Compuware and Merger Sub and the Company shall further agrees to 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the CompanyViasoft's stockholdersshareholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after Viasoft and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall will be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders shareholders of the CompanyViasoft. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent Compuware and Merger Sub agree to provide Viasoft and their counsel, respectively, in writing its counsel any written comments (and orally, any oral comments), ParentCompuware, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any including a copy of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, comments that are made in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companywriting.
(c) Parent shall Compuware will provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Viasoft Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Compuware Corporation), Merger Agreement (Viasoft Inc /De/)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs paragraph (a) through (e) or (h2)(iii) of Exhibit A hereto Annex I shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable but (and in no any event later than ten business days within 10 Business Days) after the date of the public announcement of this Agreement, Purchaser shall (and Parent and Merger Sub shall cause Purchaser to) commence the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase for cash all outstanding Shares at the Offer Price.
(b) Subject to the terms and conditions of this Agreement and the Offer, promptly after the latest of (i) the earliest date as of which Purchaser is permitted under applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub law to accept for payment, payment Shares validly tendered and pay for, any shares of Company Common Stock tendered not withdrawn pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the earliest date as of which each of the conditions and requirements set forth in Annex I (the “Offer Price to be paid pursuant to the OfferConditions”) has been satisfied, or waived by Parent or Purchaser, and (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Purchaser shall (and Parent or Merger Sub shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub pay for all Shares (as the case may bewithout interest) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted Purchaser becomes obligated to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") purchase pursuant to the Offer. The Registration Statement will include obligation of Purchaser to accept for payment and pay for Shares (without interest) tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction, or waiver by Parent or Purchaser, of each of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains, among other things, the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and Purchaser expressly reserve the right to (x) increase the Offer Price and (y) to waive any Offer Conditions and make any other changes to the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, neither Parent nor Purchaser shall (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) decrease the number of Shares sought to be purchased in the Offer, (iv) impose additional conditions to the Offer, (v) except as required by any Governmental Entity, amend or modify any terms in a preliminary prospectus containing manner adverse to the information holders of Shares, (vi) change or waive the Minimum Condition or (vii) extend or otherwise change the expiration date of the Offer other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement (within the meaning of Rule 14d-2 promulgated 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 the terms of this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, is referred to as the “Expiration Date”).
(e) The Offer may be extended from time to time as follows:
(i) If, on or prior to any then scheduled Expiration Date, all of the Offer Conditions (including the Minimum Condition and all other Offer Conditions) shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, Purchaser shall (and Parent shall cause Purchaser to), at the request of the Company, extend the Offer for one or more successive periods of not more than 10 Business Days in order to permit the satisfaction of such conditions, each until the earlier of (x) the termination of this Agreement pursuant to Section 8.1 and (y) (A) the date that is 180 days after commencement of the Offer (the “Initial Outside Date”) or (B) the date that is 270 days after commencement of the Offer in the event that the HSR Condition or the Governmental Approval Condition shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, by the Initial Outside Date (the “Extended Outside Date”), if any such extension of not more than 10 Business Days would otherwise end after the Initial Outside Date or the Extended Outside Date, as applicable;
(ii) Purchaser may, in its sole discretion, without consent of the Company, extend the Offer for one or more successive periods of not more than 10 Business Days each, if at any otherwise scheduled Expiration Date any of the Offer Conditions shall have not been satisfied, or waived by Parent or Purchaser if permitted hereunder; and
(iii) Purchaser shall extend the Offer for any period or periods required by applicable law, rule, regulation, interpretation or position of the Securities and Exchange Commission (the “SEC”) or its staff or Nasdaq or its staff.
(f) Purchaser may, in its sole discretion, provide for a “subsequent offering period” in accordance with Rule 14d-4(b) 14d-11 promulgated under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all Shares that are validly tendered and not withdrawn pursuant to the Offer during any such “subsequent offering period” promptly after any such Shares are tendered during such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 8.1 or as required by applicable law. In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and Parent shall cause Purchaser to) promptly terminate the Offer and shall not acquire any Shares pursuant to the Offer.
(h) On the date of the commencement of the OfferOffer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Purchaser shall (and Parent and Merger Sub shall cause Purchaser to) file with the SEC, and cause pursuant to be disseminated to Regulation M-A under the Company's stockholders, as and to the extent required by applicable federal securities lawsExchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”) that will comply in all material respects with the provisions of all applicable Federal and other securities Laws. The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). Parent and Purchaser shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of the Shares, in each case as and to the extent required by the Exchange Act. Each of Parent, Merger Sub Purchaser and the Company shall correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), applicable law. Parent and each of Parent, Merger Sub and the Company shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented corrected (if applicable), to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Exchange Act. Each of the parties hereto The Company and their respective its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger SubPurchaser shall give due consideration to all reasonable additions, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to deletions or changes suggested thereto by the Company and its counsel. In addition, or Parent and Merger Sub Purchaser shall provide the Company and their counsel, respectively, in writing its counsel with copies of any written comments (comments, and orally, shall inform them of any oral comments), that Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such comments comments, and any written or oral responses thereto. Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review any such written responses and shall consult with give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel, or . Parent and Merger Sub and Purchaser shall use their counsel, respectively, prior reasonable best efforts to responding respond promptly to any such commentscomments of the SEC or its staff with respect to the Offer Documents. The Company will advise Parent and Merger Sub promptly after it receives notice that hereby consents to the Registration Statement and any supplement or amendment that has been filed have become effective, inclusion in the Offer Documents of the issuance Company Recommendation, as such Company Recommendation may be amended and until such Company Recommendation may be withdrawn, in each case as permitted by this Agreement. If Purchaser terminates or withdraws the Offer, or this Agreement is terminated prior to the purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof.
(i) The Offer Price shall be adjusted appropriately to reflect the effect of any stop orderstock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination or other like change with respect to Common Stock occurring on or after the suspension date of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time this Agreement and prior to the time of consummation of the Offer, Purchaser accepts for payment and pays for any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent Shares tendered and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase withdrawn pursuant to the OfferOffer (the “Acceptance Time”), if any.
Appears in 2 contracts
Sources: Merger Agreement (Amazon Com Inc), Merger Agreement (Audible Inc)
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingthis Agreement, as promptly as reasonably practicable after the date of this Agreement, but in no event later than ten business days five (5) Business Days after the date of the public announcement of this Agreement, Parent and Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer Offer, within the meaning of the applicable rules and regulations of the Securities SEC, to purchase any and Exchange Commission (all outstanding Shares at a price equal to the "SEC")Offer Price. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Exhibit A. Annex A (the "Offer Conditions").
(b) The initial expiration date of the Offer shall be the 25th business day twentieth (20th) Business Day following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2). Notwithstanding the foregoing, if, on the initial "Expiration Date," and expiration date or any expiration time and subsequent date established pursuant as of which the Offer is scheduled to an authorized extension expire, all of the Offer as so extendedConditions have not been satisfied or waived, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, then Merger Sub shall not extend (and re-extend) the Offer and its expiration date beyond the initial expiration date or such other date for one or more periods, until the earlier to occur of (i) reduce a date as of which all of the number of shares of Company Common Stock subject to Offer Conditions, including the OfferMinimum Tender Condition, are satisfied or waived and (ii) reduce the Walk Away Date; provided that any such extension shall be in increments determined by Merger Sub of not more than ten (10) Business Days, and in no event shall the Offer Price to be paid pursuant to extend beyond the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockWalk Away Date. Notwithstanding the foregoing, Merger Sub may (but shall, and Parent shall not be obligated cause Merger Sub to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) 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; Offer or (C) extend the any period required by any other Law. The Offer for a "subsequent offering period" may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article 8. Nothing in this Section 1.1(b) shall affect any termination rights in Article 8; and in the event of any conflict between the provisions of this Section 1.1(b) and Article 8, Article 8 shall be controlling.
(c) Parent shall provide or cause to be provided by Rule 14d-11 under to Merger Sub on a timely basis the Exchange Act) for a period of three funds necessary to twenty business days in order purchase any Shares that Merger Sub becomes obligated to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject purchase pursuant to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Offer. Merger Sub shall (and Parent shall cause Merger Sub to) accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act (each a "Subsequent Offering Period") following the Acceptance Time if at the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Ultimate Parent, Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing) represent less than 90% of the then outstanding number of Shares. If immediately following the Acceptance Time, Ultimate Parent, Parent, Merger Sub and their respective Subsidiaries own more than 80% but less than 90% of the Shares outstanding at that time (which shall include (i) shares beneficially owned by Ultimate Parent, Parent, Merger Sub and their respective Subsidiaries, which Shares shall be converted into direct ownership at or prior to the expiration of the Offer by Ultimate Parent, Parent, Merger Sub or their respective Subsidiaries, as the case may be, and (ii) shares tendered in the Offer and not withdrawn), to the extent requested by the Company, Merger Sub shall provide for a Subsequent Offering Period of at least ten (10) Business Days; provided, however, that Merger Sub shall not be required to provide for such Subsequent Offering Period if the number of Shares issuable upon the exercise of the Top-Up Option would, after giving effect to such exercise and when added to the number of Shares so owned by Ultimate Parent, Parent, Merger Sub and their respective Subsidiaries, represent not less than 90% of the then outstanding number of Shares. 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 and not withdrawn during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) promulgated under the Exchange Act.
(e) Parent and Merger Sub are permitted expressly reserve the right to accept waive any condition to the Offer, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the consent of the Company, Parent and pay Merger Sub shall not do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) change or waive the Minimum Tender Condition;
(iv) except as provided in Section 1.1(b) and Section 1.1(d), extend or otherwise change the expiration date of the Offer, except (A) as required by applicable Law (including for under any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of at least $0.25 per share in the consideration to be paid pursuant to the Offer so as to comply with applicable lawrules and regulations of the SEC;
(v) change the form of consideration payable in the Offer;
(vi) amend, modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions; or
(vii) impose any condition to the Offer other than the Offer Conditions.
(bf) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall (i) contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, being referred to as the "Offer Documents")) and (ii) be in form reasonably satisfactory to the Company. The Company shall promptly upon request of Parent provide Parent with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the requirements of applicable U.S. federal securities laws and, on the date first filed with the SEC and on the date first published, sent or given to the holders of Shares, and 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, except that no covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue the Offer Documents do not contain an untrue statement of a material misstatementfact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, material omission or otherwise)in light of the circumstances under which they are made, not misleading. Each of Parent and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal Federal securities lawsLaws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given afforded a reasonable opportunity to review and comment upon the Offer Documents prior to their filing before they are filed with the SEC or dissemination and disseminated to the stockholders holders of the CompanyShares. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel copies of any written comments (and orally, or telephonic notification of any oral comments), comments Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and comments, shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments. The comments and shall provide the Company will advise with copies of all written responses and telephonic notification of any oral responses thereto of Parent and or Merger Sub promptly after it receives notice that or their counsel.
(g) Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall terminate or withdraw the Registration Statement and Offer prior to any supplement or amendment that has been filed have become effective, scheduled expiration date without the prior written consent of the issuance Company in its sole and absolute discretion, except that in the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering stockholders.
(h) The Offer Price shall be adjusted to reflect fully the effect of any stop orderreclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock occurring (or for which a record date is established) after the suspension date of this Agreement and prior to the qualification of payment by Merger Sub for the CVR Certificates issuable Shares validly tendered and not withdrawn in connection with the Offer Offer; provided, however, the provisions of this Section 1.1(h) are not authority for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent to take any action referenced in Section 5.1(b), and which should be set forth in an amendment or supplement to the Registration Statement, so that event of any conflict between the provisions of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleadingSection 5.1(b) and this Section 1.1(h), the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information provision of Section 5.1(b) shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companycontrolling.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Millennium Pharmaceuticals Inc), Merger Agreement (Millennium Pharmaceuticals Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have having been terminated in accordance with its terms pursuant to Article VII hereof the provisions of Section 8.1 hereof, Purchaser shall, and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto Parent shall have occurred or be existingcause Purchaser to, as promptly as reasonably practicable practicable, but in no event later than ten five business days after from the date of the public announcement of the terms of this Agreement or the Offer, commence an offer to purchase for cash (as it may be amended in accordance with the terms of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning "OFFER") all of the applicable rules and regulations Company's outstanding shares of the Securities and Exchange Commission common stock, no par value (the "SECSHARES"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial 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) accept for payment and 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 shall be beyond the 25th twentieth business day following the commencement thereof unless one or more of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, Conditions shall also not be defined herein as an "Expiration Date")satisfied. Parent and Merger Sub Purchaser expressly reserve reserves the right to waive any condition to the Offer or modify amend the terms and conditions of the Offer; provided, except that, that without the written consent of the Company, Merger Sub shall not no amendment may be made -------- which (i) reduce decreases the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change price per Share or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change 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 (vi) otherwise amend amends any other term of the Offer in any manner adverse to the holders of Company Common StockShares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On Upon the terms and subject to the conditions to the Offer that are set forth in this AgreementConditions, promptly after the Expiration Date, either Parent or Merger Sub shall Purchaser will accept for payment and purchase, as promptly soon as practicable after permitted under the date on which Parent or Merger Sub (as terms of the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")Offer, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant prior to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawexpiration of the Offer.
(b) As promptly The Company will not, nor will it permit any of its wholly owned Subsidiaries (as reasonably practicable but in no event later than ten business days after defined below) to, tender into the date Offer any Shares beneficially owned by it; provided, that Shares held beneficially or of record -------- by any plan, program or arrangement sponsored or maintained for the benefit of employees of the public announcement Company or any of its Subsidiaries shall not be deemed to be held by the Company regardless of whether the Company has, directly or indirectly, the power to vote or control the disposition of such Shares. For purposes of this Agreement, the Company shall cause the CVR Trust "SUBSIDIARY" means, as to any Person (as defined in Section 5.16 below), any corporation, partnership or joint venture, whether now existing or hereafter organized or acquired: (a)) to file with in the SEC under case of a corporation, of which at least a majority of the Securities Act outstanding shares of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered stock having by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant terms thereof ordinary voting power to the Offer. The Registration Statement will include elect a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement majority of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required board of directors of such corporation (other than stock having such voting power solely by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part reason of the Registration Statement and a related letter happening of transmittal and summary advertisement any contingency) is at the time directly or indirectly owned or controlled by such Person and/or one or more of its Subsidiaries or (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use b) in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue case of a material misstatement, material omission partnership or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersjoint venture, in each case as and to the extent required by which such Person or deemed advisable under applicable federal securities laws. Each a Subsidiary of such Person is a general partner or joint venturer or of which a majority of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following partnership or other ownership interests are at the time the Registration Statement is declared effectiveowned by such Person and/or one or more of its Subsidiaries. For purposes of this Agreement, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC "PERSON" means any individual, corporation, company, voluntary association, partnership, joint venture, trust, unincorporated organization or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyentity.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Forum Group Inc), Merger Agreement (Marriott International Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII hereof, Purchaser shall, and none Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the events set forth in paragraphs (aExchange Act) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable but in no event later than ten business days after following the date of the public announcement execution of this Agreement, but not later than ten (10) Business Days following the date 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 obligation of Purchaser to, and of Parent to cause Purchaser to, accept for payment and Merger Sub shall commence pay for any Shares tendered in the Offer within and not withdrawn shall be subject to the meaning satisfaction of those conditions set forth in Annex I. The conditions to the applicable rules and regulations of Offer set forth on Annex I are for the Securities and Exchange Commission (the "SEC"). The obligations sole benefit of Parent and Merger Sub Purchaser and each of Parent and Purchaser expressly reserves the right from time to accept for paymenttime, subject to Sections 1.1(b) and pay for1.1(d) hereof, to waive any shares such condition, to increase the Offer Price, or to make any other changes in the terms and conditions of the Offer. The Company Common Stock agrees that no Shares held by the Company or any of its Subsidiaries shall be tendered pursuant to the Offer are subject to Offer.
(b) Without the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub neither Parent nor Purchaser shall not (i) reduce decrease the number Offer Price or change the form of shares of Company Common Stock subject to consideration payable in the Offer, (ii) reduce decrease the Offer Price number of Shares sought to be paid pursuant to purchased in the Offer, (iii) change amend or waive satisfaction of the Minimum Tender Condition (as defined in Exhibit AAnnex I), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend impose conditions to the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject 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”) having such terms and conditions as are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly Annex I hereto. As soon as practicable after on the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Purchaser shall file with the Securities and Exchange Commission (the "Acceptance Date")“SEC”) a Tender Offer Statement on Schedule TO (together with all amendments, all shares of Company Common Stock validly tendered exhibits and not withdrawn pursuant supplements thereto, the “Schedule TO”) with respect to the Offer that shall comply in all material respects with the provisions of all applicable federal securities laws, and shall contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements, exhibits or amendments 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”). The Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Purchaser shall give the Company shall cause one (1) Business Day advance notice prior to filing the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the OfferSchedule TO. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with disseminate the SEC, and cause Offer Documents to be disseminated to the Company's stockholders, holders of Shares as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect . The Company shall promptly furnish to Parent and Purchaser all information concerning the Offer, which shall contain an offer to purchase and exchange and will contain Company that may be required by applicable securities laws or incorporate reasonably requested by reference all Parent or part of Purchaser for inclusion in the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which Offer Documents. Parent and Purchaser hereby further agree that the Schedule TO and the Offer will be made (including the Registration Statement)Documents, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 when filed with the SEC and on the Offer Documents as so amended date first published, sent or supplemented to be disseminated given to the Company's ’s stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing not contain any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement 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, that no representation or warranty is made by Parent or Purchaser with respect to information supplied by or on behalf of the party Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company hereby agrees that discovers 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 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, 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 promptly notify have become false or misleading in any material respect. Parent and Purchaser shall take all steps necessary to cause the other party Schedule TO and an appropriate amendment or supplement describing the Offer Documents, as amended, to reflect such information shall corrected information, to be promptly filed with the SEC andand the other Offer Documents, as amended to reflect such corrected information, to be disseminated to the Company’s stockholders, 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 any Offer Documents before they are filed with the SEC, disseminated and Parent and Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the stockholders Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(d) 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 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 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 it may be extended) for up to two periods, each for up to five (5) Business Days, if on such expiration date the conditions for the Offer described 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.
(ce) 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 provide, or cause to be provided to Merger Sub Purchaser, on a timely basis basis, the funds necessary to purchase pay for any shares of Company Common Stock Shares that Merger Sub becomes Purchaser accepts or is obligated to purchase accept for payment pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Barrier Therapeutics Inc), Merger Agreement (Stiefel Laboratories, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall has not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 8.1, as promptly as reasonably practicable (but in no event later than ten (10) business days days) after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall cause Purchaser to commence the Offer (within the meaning of the applicable rules and regulations Rule 14d-2 of the Securities Exchange Act) the Offer at the Offer Price. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, promptly after the Expiration Time (and in any event within one (1) business day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Commission (the "SEC"Act). The obligations of Parent and Merger Sub to ), accept for payment, and pay for, any shares of Company Common Stock payment all such Shares validly tendered pursuant to the Offer are subject to and not withdrawn (the conditions set forth in Exhibit A. The initial expiration date and time of the first acceptance for payment, the “Acceptance Time”) and promptly thereafter pay for such Shares.
(b) The Offer shall initially be scheduled to expire at midnight (Eastern time) on the 25th date that is twenty (20) business day days following the commencement of the Offer (determined using Rule 14d-1(g)(3) promulgated under the initial "Expiration Date," and any expiration Exchange Act) (the latest time and date established as the Offer may expire, as it may be extended pursuant to an authorized extension this Section 1.1, shall be referred to as the “Expiration Time”). If on or prior to any then scheduled Expiration Time, all of the conditions set forth in Annex I (collectively, the “Offer Conditions”) shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for successive periods of up to ten (10) business days each (the length of such period to be determined in good faith by Parent and the Company) until the earlier of (x) the date on which all of the Offer as so extended, shall also Conditions are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Section 8.1. The Offer may not be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition terminated or withdrawn prior to the Offer Expiration Time, unless this Agreement is terminated in accordance with Section 8.1. In the event this Agreement is terminated pursuant to Section 8.1, Parent shall cause Purchaser to promptly (and in any event within one (1) business day of such termination) irrevocably and unconditionally terminate the Offer.
(c) Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify the terms any term or condition of the OfferOffer in its sole discretion; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not neither Parent nor Purchaser shall:
(i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend Offer, decrease the Offer in any manner adverse Price or decrease the number of Shares subject to or sought pursuant to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may Offer;
(but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (Bii) extend the Offer Expiration Time, except as required by this Agreement or Applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC applicable to or its staff);
(iii) waive or amend the Offer; or Minimum Condition;
(Civ) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions impose any condition to the Offer that are not set forth in Annex I; or
(v) otherwise amend, modify or supplement any Offer Condition or any term of the Offer set forth in this AgreementAgreement or in the Offer Documents in a manner adverse to the Company’s shareholders.
(d) Purchaser may, promptly after without the Expiration Dateconsent of the Company, either Parent or Merger Sub shall accept elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Exchange Act following its acceptance for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to of Shares in the Offer (the "Acceptance Date"a “Subsequent Offering Period”), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(be) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall (i) file with the SEC, and or cause to be disseminated to filed with the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which shall contain an or incorporate by reference the offer to purchase and exchange and will contain or incorporate by reference all or part forms of the Registration Statement and a related letter of transmittal and transmittal, summary advertisement (such Schedule TO and the other ancillary documents included therein and instruments required thereby pursuant to which the Offer will be made (including the Registration Statement), together collectively with any supplements or supplements, amendments and exhibits thereto, the "“Offer Documents"”) and (ii) cause the Offer Documents to be disseminated to the Company’s shareholders as and to the extent required by the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents prior to their filing with the SEC, and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company or its counsel. Parent and Purchaser agree to provide the Company with (i) any comments or other communications, whether written or oral, that may be received from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof and prior to responding thereto, and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given). Each of Parent, Merger Sub Purchaser and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub Parent and the Company Purchaser 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by Applicable Law or deemed advisable under any applicable federal securities laws. Each rules or regulations of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such commentsNASDAQ. The Company will advise shall promptly furnish to Parent and Merger Sub promptly after it receives notice that Purchaser all information concerning the Registration Statement and any supplement or amendment that has been filed have become effective, of Company required by the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable Exchange Act to be set forth in connection with the Offer for offering or sale in any jurisdictionDocuments. If, at any time Subject to an Adverse Change Recommendation being made by the Company pursuant to Section 5.4 prior to the time of consummation of the Offer, any information relating Offer Documents are disseminated to the Company’s shareholders, Merger Sub or the CVR TrustCompany hereby consents to the inclusion of a description of the Company Board Recommendation in the Offer Documents; provided, Parent, or any of their respective affiliates, officers or directors, should be discovered in the event an Adverse Change Recommendation is made by the Company or pursuant to Section 5.4 following the time the Offer Documents are disseminated to the Company’s shareholders, each of Parent and which should be set forth in an amendment Purchaser shall take all steps necessary to amend or supplement the Offer Documents to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers correct such information shall promptly notify and to cause the other party and an appropriate amendment Offer Documents as so amended or supplement describing such information shall supplemented to be promptly filed with the SEC and, to the extent required by applicable law, and disseminated to the stockholders holders of the CompanyShares, as applicable.
(cf) Parent shall provide or cause to be provided to Merger Sub Purchaser on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the OfferOffer and shall cause Purchaser to fulfill its obligations under this Agreement. Parent shall, and shall ensure that all of its Affiliates, either (i) tender Shares held by them, if any, into the Offer or (ii) transfer such Shares to Purchaser prior to the Acceptance Time.
Appears in 2 contracts
Sources: Merger Agreement (CalAmp Corp.), Merger Agreement (Lojack Corp)
The Offer. (a) Subject On the terms and subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs Agreement, within seven (a7) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after from the date of hereof, the public announcement of this Agreement, Parent and Buyer shall (or shall cause Merger Sub shall to) commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”). The obligations of Parent ), the Offer to purchase any and Merger Sub to accept for payment, and pay for, any all outstanding shares of Company Common Stock for consideration per share equal to $5.80 (the “Offer Consideration”) in cash. On the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, the Buyer shall (or shall cause Merger Sub to) accept for payment all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer are as soon as practicable after the expiration of the Offer and shall pay the Offer Consideration for all such shares of Company Common Stock promptly after acceptance. The obligation of the Buyer (either directly or through Merger Sub) to commence the Offer and to accept for payment and pay the Offer Consideration for shares of Company Common Stock validly tendered in the Offer and not properly withdrawn shall be subject to the conditions set forth in Exhibit A. Annex I to this Agreement (which is annexed to this Amendment).
(b) The initial expiration date of the Offer shall be the 25th twentieth (20th) business day following the after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"Exchange Act). Parent and Merger Sub expressly reserve the right If on or prior to waive any condition to the Offer or modify the terms then scheduled expiration date of the Offer, except all of the conditions to the Offer (including the Minimum Condition and all other conditions and requirements set forth in Annex I) shall not have been satisfied, or waived by the Buyer or Merger Sub if permitted hereunder, the Buyer shall (and shall cause Merger Sub to) extend the Offer for periods of up to ten (10) business days each until the earlier of (x) the date on which the Minimum Condition has been met and all of the conditions and requirements set forth in Annex I are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Article VIII. The Buyer expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, Merger Sub the Buyer shall not not:
(i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend Offer, decrease the Offer in any manner adverse to Consideration, or decrease the holders number of shares of Company Common Stock. Notwithstanding Stock sought pursuant to the foregoing, Merger Sub may Offer;
(but shall not be obligated to), without ii) extend the consent expiration date of the Company and in its sole and absolute discretion, Offer except (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted required by this Agreement; Agreement or applicable law (B) extend the Offer including for any period required by any rule, regulation, interpretation or position of the SEC applicable to United States Securities and Exchange Commission (the Offer; “SEC”) or the staff thereof), or (CB) extend in connection with an increase in the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three consideration to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment be paid pursuant to the Offer so as to comply with applicable rules and regulations of the SEC;
(iii) waive the "Acceptance Date")Minimum Condition;
(iv) amend any term of the Offer in any manner adverse to holders of shares of Company Common Stock; or
(v) impose any condition to the Offer not set forth in Annex I. Neither the Buyer nor Merger Sub shall terminate or withdraw the Offer prior to the then scheduled expiration of the Offer unless this Agreement is validly terminated in accordance with its terms, all in which case the Buyer shall (or shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) business day) after such termination of this Agreement. The Buyer may, without the consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Exchange Act following its acceptance for payment of shares of Company Common Stock validly tendered and not withdrawn pursuant to in the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
(bc) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and the Buyer shall (or shall cause Merger Sub shall to) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part (the “Offer to Purchase”), a form of the Registration Statement and a related letter of transmittal transmittal, and summary advertisement (such Schedule TO ancillary documents and the documents included therein instruments pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any supplements or amendments thereto, the "“Offer Documents"”). Each of Parent, The Buyer and Merger Sub and shall provide the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the other Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one handSEC, and the Company on behalf of the CVR Trust, on the other hand, Buyer and Merger Sub shall provide give reasonable and good faith consideration to any comments made by the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments counsel (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with it being understood that the Company and its counsel, or Parent counsel shall provide any comments thereon as soon as reasonably practicable). The Buyer and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice agree that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable Offer Documents shall comply in connection all material respects with the Offer for offering requirements of applicable U.S. federal securities laws and, on the date first filed with the SEC and on the date first published, sent or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating given to the Company’s stockholders, Merger Sub or the CVR Trust, Parent, or shall not contain any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement 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 covenant, agreement, representation or warranty is made by the party that discovers such Buyer or Merger Sub with respect to information supplied by the Company or any of its stockholders for inclusion or incorporation by reference in the Offer Documents. The Buyer and Merger Sub shall promptly notify take all steps necessary to cause the other party Offer Documents to be disseminated to holders of shares of Company Common Stock, as and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable lawU.S. federal securities laws. Each of the Buyer, Merger Sub and the Company shall promptly correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Buyer and Merger Sub shall take all steps necessary to amend or supplement the Schedule TO and, as applicable, the Offer Documents and to cause the Schedule TO as so amended and supplemented to be filed with the SEC and the Offer Documents as so amended and supplemented to be disseminated to holders of shares of Company Common Stock, in each case as and to the stockholders extent required by applicable U.S. federal securities laws. The Buyer and Merger Sub shall provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments the Buyer, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer promptly after the receipt thereof, shall provide the Company and its counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the CompanySEC or its staff (including a reasonable opportunity to review and comment on any such response, which comments the Buyer and Merger Sub shall give reasonable and good faith consideration), and shall provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of the Buyer or Merger Sub or their counsel.
(cd) Parent The Buyer shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(e) The Buyer and Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as the Buyer OR Merger Sub, as the case may be, reasonably determines that it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), or under any other applicable law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A hereto shall exist or have occurred or and be existingcontinuing, Purchaser shall, and Parent shall cause Purchaser to, use reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as promptly as reasonably practicable amended (the “Exchange Act”)) prior to the fifth (5th) Business Day after the date hereof (but in no event later than ten business days the tenth (10th) Business Day after the date of hereof, provided that the public announcement of this Agreement, Parent Company shall be prepared to disseminate to its shareholders its Schedule 14d-9 and Merger Sub shall commence Schedule 14f-1 within such time period) the Offer within to purchase all outstanding Shares at the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer Price. The obligations of Purchaser (and of Parent and Merger Sub to cause Purchaser) to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A. A hereto (the “Offer Conditions”). The initial expiration date (the “Initial Expiration Date”) of the Offer shall be the 25th business twentieth (20th) Business Day following (and including the day following of) the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub Purchaser expressly reserve reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any condition to the Offer Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub Purchaser shall not decrease the Offer Price or change the form of the consideration payable in the Offer, or, except pursuant to Section 1.1(b), (iA) reduce decrease the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid Shares sought pursuant to the Offer, (iiiB) change amend or waive the Minimum Tender Condition (as defined in Exhibit A), (C) add to the conditions set forth in on Exhibit A or A, (D) modify any condition the conditions set forth in on Exhibit A in any a manner that is adverse to the holders of Company Common Stock, Shares or (ivE) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions expiration date of the Offer shall not have been satisfied except as required or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (BSection 1.1(a)(ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"iii), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Genelabs Technologies Inc /Ca), Merger Agreement (Glaxosmithkline PLC)
The Offer. (a) Subject Upon the terms and subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable (but in no event later than ten business days seven Business Days) after the date of the public announcement of this Agreement, Purchaser shall, and Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the cause Purchaser to, file with Securities and Exchange Commission (the "“SEC")”) amended Offer Documents, reflecting the offer to purchase all of the Shares at the Offer Price, and cause the Offer Documents to be disseminated to the stockholders of the Company as and to the extent required by federal securities Laws. The obligations of Purchaser to, and of Parent and Merger Sub to cause Purchaser to, accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit A. A (as they may be amended in accordance with this Agreement, the “Offer Conditions”).
(i) The initial expiration date of the Offer pursuant to the amended Offer Documents shall be 5:00 p.m., New York City time, on the 25th 15th business day following the commencement filing of the amended Offer Documents pursuant to Section 1.1(a) (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act of 1934 (the initial "“Exchange Act”)) (the “Initial Expiration Date," and any expiration ”) or, if the Offer has been extended in accordance with this Agreement, at the time and date established pursuant to an authorized extension of which the Offer as has been so extendedextended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Agreement, shall also be defined herein as an "the “Expiration Date"”). Parent and Merger Sub Purchaser expressly reserve reserves the right to waive right, at any condition to the time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub Purchaser shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition, (D) add to the Offer Conditions or make any condition to the Offer more difficult to satisfy, (E) extend the Expiration Date other than in accordance with this Agreement or provide a “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act or (viF) otherwise amend the Offer in any a manner adverse to the holders of Shares generally. Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Section 8.1. If this Agreement is terminated pursuant to Section 8.1, Purchaser shall, and Parent shall cause Purchaser 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 Purchaser, or if this Agreement is terminated pursuant to Section 8.1 prior to the acceptance for payment and payment for Shares in the Offer, Purchaser shall promptly return, and shall cause any depositary acting on behalf of the Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(ii) Parent and Purchaser agree that if on any scheduled Expiration Date of the Offer, any of the Offer Conditions (including the Minimum Tender Condition and the other Offer Conditions set forth in Exhibit A) is not satisfied or, in Purchaser’s sole discretion, waived (if such condition is permitted to be waived pursuant to this Agreement and applicable Law), then Purchaser shall, and Parent shall cause Purchaser to, extend the Offer for successive periods of time of up to ten Business Days (the length of such periods to be determined by Parent, in its sole discretion) or such number of Business Days as the parties may agree in order to permit the satisfaction of such conditions; provided, however, that if the sole then unsatisfied condition is the Minimum Tender Condition, Purchaser shall so extend the Offer if and only if the Company Common Stockshall have delivered to Purchaser a written request that Purchaser so extend the Offer; provided further, that if the Antitrust Condition shall have been satisfied less than five business days prior to the Expiration Date (as determined pursuant to Rule 14d-1(g)(3) of the Exchange Act), no such consent of the Company shall be required for Parent to extend the Offer for a period of up to five business days (as determined pursuant to Rule 14d-1(g)(3) of the Exchange Act). Notwithstanding the foregoing, Merger Sub may in no event shall Purchaser be required to (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A1) from time to time extend the Offer beyond the Outside Date or (2) extend the Offer at any time that Parent or Purchaser is permitted to terminate this Agreement pursuant to Article VIII. In addition, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer (i) for any period or periods required by applicable Law, including applicable rules, regulations, interpretations or positions of the SEC or its staff, or rules of any securities exchange and (ii) for a period of five business days (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) following the then scheduled Expiration Date if, at within the scheduled five business day (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) period prior to such Expiration Date, any the Company Board shall have provided Parent notice pursuant to Section 6.5(b) or Section 6.5(d) of its intention to make a Change in Company Recommendation or otherwise terminate the conditions of Agreement as provided in Section 6.5(b).
(iii) Subject to the Offer shall not have been satisfied satisfaction or waived until such time as such conditions are satisfied or waived waiver (to the extent permitted by this Agreement; (BAgreement and applicable Law) extend by Purchaser of the Offer Conditions as of any scheduled Expiration Date, Purchaser shall, and Parent shall cause Purchaser to, accept for payment and pay for (subject to any period required by any rule, regulation, interpretation or position withholding of tax pursuant to Section 1.1(d)) all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after the expiration of the SEC applicable Offer on such Expiration Date. Acceptance for payment of Shares pursuant to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to of the Offer that are set forth upon the expiration of the Offer is referred to in this AgreementAgreement as the “Offer Closing”, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (the Offer Closing occurs is referred to in this Agreement as the case may be) first accepts shares for payment pursuant to the “Offer (the "Acceptance Closing Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law”.
(b) As promptly as reasonably practicable but The Offer Documents shall comply in no event later than ten business days after all material respects with the date applicable provisions of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Exchange Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents")Laws. Each of Parent, Merger Sub Purchaser and the Company shall promptly correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub Parent and the Company Purchaser 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the stockholders of the Company's stockholders, in each case as soon as reasonably practicable and as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the CompanyLaws. Parent and Merger SubPurchaser shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their Representatives, on the one hand, and the Company on behalf of the CVR TrustSEC, on the other hand. Prior to the filing of any Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Purchaser shall provide to the Company and its counselcounsel a reasonable opportunity to review and comment on such Offer Documents or response, or and Parent and Merger Sub and their counsel, respectively, in writing Purchaser shall give reasonable consideration to any written such comments. In the event that Parent or Purchaser receives any comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after the receipt of to such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact (ii) take all other actions necessary to make resolve the statements issues raised therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub Purchaser on a timely basis the funds consideration necessary to purchase pay for any shares of Company Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase accept for payment, and pay for, pursuant to the OfferOffer and shall cause Purchaser to fulfill all of Purchaser’s obligations under this Agreement.
(d) At or prior to the Effective Time, Parent shall engage a nationally-recognized financial institution reasonably satisfactory to the Company to act as paying agent in connection with the Offer and the Merger (the “Paying Agent”). Parent, Purchaser or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Parent, Purchaser or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state or local Tax Law. To the extent that amounts are so withheld and paid over by Parent, Purchaser 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 in respect of which such deduction and withholding was made by Parent, Purchaser or the Paying Agent.
Appears in 2 contracts
Sources: Merger Agreement (Bank Jos a Clothiers Inc /De/), Merger Agreement (Mens Wearhouse Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof terms, Purchaser shall (and none Parent shall cause Purchaser to), commence (within the meaning of Rule 14d-2 under the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingExchange Act), as promptly as reasonably reasonable and practicable but in no event later than ten business days five (5) Business Days after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall commence the Offer within at the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")Offer Price. The obligations obligation of Parent Purchaser to consummate the Offer and Merger Sub to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject only to (i) the satisfaction or waiver of the conditions set forth in Exhibit A. Annex I, and (ii) the satisfaction or waiver of the conditions set forth in Annex II. The conditions to the Offer set forth in Annex I are for the sole benefit of Parent and Purchaser, and Parent and Purchaser reserve the right, in their sole discretion, subject to applicable Law to waive any such condition in Annex I. The initial expiration date of the Offer shall be 5:00 pm (EST) on the 25th business 40th calendar day following commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act). Notwithstanding the foregoing, Purchaser may (i) extend the Offer one or more times beyond the initial scheduled expiration date or any subsequent scheduled expiration date, but in no event beyond the 70th calendar day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company’s consent, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Dateexpiration of the Offer, any of the conditions of the Offer to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not have been be satisfied or waived until such time as such conditions are satisfied or waived or, to the extent permitted by this Agreement; , waived, and (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC or the staff thereof applicable to the Offer; provided, however, that the foregoing clauses (i) and (ii) of this Section 1.01(a) shall not be deemed to impair, limit or (C) extend otherwise restrict the right of any party to terminate this Agreement pursuant to the terms of Section 8.01 hereof. Notwithstanding the foregoing, if at the end of the 40th calendar day following commencement of the Offer for a "or at the end of any subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the scheduled expiration date, all conditions to the Offer have been satisfied and/or waived other than the Minimum Condition, Purchaser shall (and Parent shall cause Purchaser to), if requested by the Company, extend the expiration of the Offer one or more times; provided, that Purchaser shall not be obligated to extend the Offer beyond 5:00 pm (EST) on the 70th calendar day following commencement of the Offer. Each extension of the Offer pursuant to this Section 1.01(a) shall not exceed the lesser of five (5) 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 and the Company reasonably believe are necessary to cause the conditions of the Offer set forth in Annex I and Annex II hereto to be satisfied. Subject to the terms of this AgreementAgreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex I and Annex II hereto as of any expiration date of the Offer, promptly after the Expiration Date, either Purchaser shall (and Parent or Merger Sub shall cause Purchaser to) accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are promptly after it is permitted to accept and pay for do so under applicable law.
Law (b) As promptly as reasonably practicable but in no event later than ten business days three (3) Business Days after the such expiration date of the public announcement of this AgreementOffer). On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, the Company Parent shall provide or cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by provided to Purchaser the CVR Trust representing the CVRs (the "CVR Certificates") funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing Offer Price shall, subject to any required withholding of Taxes, be net to the information required under Rule 14d-4(bseller in cash, without interest, upon the terms and subject to the conditions of the Offer.
(b) under Subject to Section 1.01(a), Purchaser expressly reserves the Exchange Act. On right, in its sole discretion, to modify the date of commencement terms and conditions of the Offer, including, without limitation, to extend the Offer beyond any scheduled expiration date; provided, however, that, without the prior written consent of the Company, Purchaser shall not (i) decrease the Offer Price or change the form of consideration payable in the Offer (other than by adding consideration), (ii) seek to purchase less than all outstanding Shares, (iii) impose material conditions to the Offer in addition to those set forth in Annex I or otherwise modify or amend any of the conditions to the Offer set forth in Annex I that are in a manner adverse to the holders of Shares, or (iv) waive the conditions set forth in Annex II. Upon the terms and subject to the conditions of the Offer and this Agreement, Purchaser shall accept for payment and purchase all Shares validly tendered and not withdrawn prior to the expiration of the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) subject to the conditions set forth in Annex I and Annex II. As soon as reasonably practicable on the date the Offer is commenced, Parent and Merger Sub Purchaser shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the OfferOffer that (i) will comply in all material respects with the provisions of all applicable federal securities Laws (other than with respect to the accuracy or completeness of information supplied by the Company for inclusion or incorporation by reference into the Schedule TO or other Offer Documents), which shall contain an offer to purchase and exchange and (ii) will contain (including as an exhibit) or incorporate by reference all or part the Offer to Purchase and a form of the Registration Statement and a related letter of transmittal transmittal, and (iii) may contain a summary advertisement (such Schedule TO and the documents included therein pursuant to at Parent’s sole discretion), which the Offer will be made (including the Registration Statement)documents, together with any supplements or amendments thereto, are referred to collectively herein as the "“Offer Documents").” Parent and Purchaser shall cause the Offer Documents to be mailed to the holders of Shares as and to the extent required by applicable securities laws. Each of Parentthe Company, Merger Sub on the one hand, and Parent and Purchaser, on the Company shall other hand, agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information the Schedule TO or the Offer Documents shall be, or have originally been or shall become become, false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub Parent and the Company shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended or supplemented corrected, to be filed with the SEC and the Offer Documents Documents, as so amended or supplemented corrected, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities lawsLaws. Each of the parties hereto Parent and Purchaser shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, provide the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective its counsel shall be given with a reasonable opportunity to review and comment upon on the Schedule TO and any Offer Documents prior to their filing before they are filed with the SEC or dissemination and mailed to the stockholders holders of the CompanyShares. In addition, Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Purchaser agree to provide to the Company and its counselcounsel with any comments, whether written or oral, that Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall comments, to consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments. The Company will advise Parent comments and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by provide the Company with copies of all such responses, whether written or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyoral.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Sunterra Corp), Merger Agreement (Diamond Resorts, LLC)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingVIII, as promptly as reasonably practicable after the date of this Agreement but in no event later than ten business days after the date of the public announcement of this AgreementMay 11, Parent and 2012, Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer to purchase all issued and regulations outstanding shares of Common Stock (including shares of Restricted Common Stock) at the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Offer Price; provided, however, that Merger Sub shall not be required to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to commence the Offer are subject to if (i) any of the conditions set forth in Exhibit A. clauses 2(a), 2(b), 2(c), 2(e), 2(f), or 2(g) of Annex I have occurred or (ii) the Company Board shall have made an Adverse Change Recommendation. The initial expiration Offer Price shall be net to the seller in cash, subject to reduction only for any applicable Taxes.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), promptly after the later of (i) twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) and (ii) the earliest date as of which the Minimum Condition has been satisfied and each of the other Offer Conditions has been satisfied, or waived, by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms, and accept for payment and pay promptly after the Expiration Date for all shares of Common Stock (including shares of Restricted Common Stock) validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. 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 shall be not inconsistent with the 25th business day following the commencement terms of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant this Agreement, in each case subject to an authorized extension of extending the Offer as so extendedrequired by applicable Law; provided, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offerhowever, except thatthat unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (iA) reduce decrease the number of shares of Company Common Stock subject to the OfferOffer Price, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vB) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Common Stock sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than the Offer Conditions, (E) amend or (vi) otherwise amend modify any of the Offer Conditions or any of the terms of the Offer in any a manner adverse to the holders of Company shares of Common Stock. Notwithstanding Stock or that would, individually or in the foregoingaggregate, 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 or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may (but shall not be obligated towithdrawn prior to the Expiration Date (or any rescheduled Expiration Date), without unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the consent terms of this Agreement, the Offer shall initially be scheduled to expire at 9:00 a.m. (New York City time) on the date that is twenty-one (21) 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 Company Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in its sole accordance with this Agreement, the date and absolute discretiontime 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”).
(Ae) The Offer shall be extended from time to time extend the Offer if, at 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 of which by their nature are to be satisfied at the Offer shall not have been satisfied Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then prior to the then scheduled expiration date (A) Merger Sub may, at its option, 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 Termination 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, in accordance with this Agreement) and (B) Merger Sub shall, if such condition or conditions are then capable of being satisfied prior to the Termination Date, extend the Offer from time to time until such time as such conditions are satisfied or waived waived; provided, that Merger Sub shall not be required to extend the extent permitted by this Agreementoffer beyond the Termination Date; and
(Bii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by any rule, regulationapplicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff, in each case applicable to the Offer; or (C) , provided that Merger Sub shall not be required to extend the Offer beyond the Termination Date.
(f) Merger Sub may (and the Offer Documents shall reserve the right of Merger Sub to) provide for a "subsequent offering period" period (as provided by within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act of not less than three (3) Business Days nor more than twenty (20) Business Days (for a period of three to twenty business days this purpose calculated in order to acquire at least 90% accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration of the outstanding shares of the Company Common StockOffer. On Subject to the terms and subject to the conditions to the Offer that are set forth in this AgreementAgreement and the Offer, promptly after the Expiration Date, either Parent or shall cause Merger Sub shall to, and Merger Sub shall, accept for payment and purchase, pay for all shares of Common Stock validly tendered during such subsequent offering period as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all any such shares of Company Common Stock validly are tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no any event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file compliance with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b14e-1(c) under the Exchange Act. On 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 of Common Stock 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.
(g) 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 of Common Stock pursuant to the Offer and (iii) cause any depository acting on behalf of Merger Sub to promptly return, in accordance with applicable Law, all tendered shares of Common Stock to the registered holders thereof.
(h) As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall use reasonable best efforts to (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall contain an offer to purchase and exchange and the “Schedule TO”) that will contain or incorporate by reference all or part the Offer to Purchase and form of the Registration Statement and a related letter of transmittal and transmittal, form of summary advertisement and such other customary documents as the Company and Parent may agree (such the Schedule TO and the documents included therein pursuant to which TO, the Offer will be made (including the Registration Statement)to Purchase and such other documents, together with any all amendments and supplements or amendments thereto, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities Laws. Parent and Merger Sub agree that they shall cause the 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. Each of Parent, Merger Sub and the Company shall agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall take Parent further agrees to use all steps necessary reasonable efforts to amend or supplement the Offer Documents and to promptly cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to promptly be disseminated to the Company's stockholdersholders of shares of Common Stock, in each case as and to the extent required by applicable Law. The Company shall promptly furnish or deemed advisable under applicable federal securities laws. Each otherwise make available to Parent and Merger Sub or Parent’s legal counsel, for inclusion in the Offer Documents, all information reasonably requested by Parent and reasonably available to the Company concerning the Company and the Company’s shareholders that may be required in connection with any action contemplated by this Section 1.1(h) to be included in the Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after shares of Common Stock. The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents and any amendments thereto prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. In addition, Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Sub agree to provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel with any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and any written responses thereto, and to promptly inform them of any oral comments or other communications. The Company and its counsel shall consult with be given a reasonable opportunity to review and comment upon any written responses and to participate in any oral responses and Parent shall give due consideration to all reasonable additions, deletions or changes, as applicable, suggested thereto by the Company and its counsel, or . Each of Parent and Merger Sub and their counsel, respectively, prior to responding shall respond promptly to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, comments of the issuance of any stop order, SEC or of the suspension of the qualification of the CVR Certificates issuable in connection its staff with respect to the Offer for offering Documents or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(ci) Parent shall provide or cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any shares of Company Common Stock 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. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any shares of Common Stock held by them into the Offer.
Appears in 2 contracts
Sources: Merger Agreement (LD Commodities Sugar Holdings LLC), Merger Agreement (Imperial Sugar Co /New/)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII Section 8.1 hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto Annex I shall have occurred or and be existing, as promptly as reasonably practicable (but in no event later than ten five (5) business days after the date of the public announcement of the execution of this Agreement), Parent and Merger Sub the Purchaser shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SECExchange Act")) the Offer at the Offer Price and, subject to there being validly tendered and not withdrawn prior to the expiration of the Offer, 9,158,155 Shares (including Shares owned by Parent, the Purchaser or any affiliates thereof) (the "Minimum Condition") and to the other conditions set forth in Annex I hereto, shall use its best efforts to consummate the Offer in accordance with its terms. The obligations of Parent and Merger Sub the Purchaser to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares validly tendered pursuant on or prior to the expiration of the Offer are and not withdrawn shall be subject only to the Minimum Condition and the other conditions set forth in Exhibit A. Annex I hereto. The initial expiration date of the Offer shall be the 25th business day following the commencement made by means of the Offer an offer to purchase (the initial "Expiration Date," and any expiration time and date established pursuant Offer to an authorized extension of the Offer as so extended, shall also be defined herein as an Purchase"Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the OfferMinimum Condition and the other conditions set forth in Annex I hereto and reflecting, (ii) reduce where appropriate, the Offer Price to be paid pursuant to the Offer, (iii) change other terms set forth in this Agreement. The Purchaser shall not amend or waive the Minimum Tender Condition (as defined in Exhibit A)other than, add at Purchaser's option, to lower the conditions set forth in Exhibit A Minimum Condition to a majority of the issued and outstanding Common Stock on a fully diluted basis) and shall not decrease, or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in of, the Offer Price or (vi) otherwise decrease the number of Shares sought, or amend any other condition of the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), Shares or impose any condition to the consummation of the Offer beyond the Minimum Condition and the conditions set forth in Annex I hereto without the written consent of the Company and in its sole and absolute discretionCompany; provided, however, that if on the initial scheduled expiration date of the Offer, which shall be twenty-one (A21) from time to time extend business days after the date the Offer ifis commenced, at the scheduled Expiration Date, any of the all conditions of to the Offer shall will not have been satisfied or waived until such waived, the Purchaser may, from time as such to time, in its sole discretion, extend the expiration date and; provided further, however, that if on the initial scheduled expiration date of the Offer any conditions to the Offer that are reasonably capable of being satisfied within ten (10) business days, including the Minimum Condition, will not have been satisfied or waived waived, the Purchaser shall extend the expiration date for a minimum of ten (10) business days. In no event shall the Purchaser be obligated to the extent permitted by this Agreement; (B) extend the Offer for any period required by any rulebeyond June 30, regulation1999. The Purchaser shall, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On on the terms and subject to the prior satisfaction or waiver of the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, pay for Shares tendered as promptly soon as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are it is legally permitted to accept and pay for do so under applicable law.
(b) As promptly If more than 9,158,155 Shares are validly tendered prior to the expiration date, as reasonably practicable but in no event later than ten business days after may be extended pursuant to Section 1.1(a), and not withdrawn, the date Purchaser will, upon the terms and subject to the conditions of the public announcement Offer, accept for payment (and thereby purchase) the Shares purchased in the Offer on a pro rata basis, with adjustments to avoid purchases of fractional shares of Common Stock, based on the number of Shares validly tendered prior to the expiration date and not withdrawn by each tendering stockholder. Subject to the terms of this Agreement, the Company Purchaser reserves the right (but shall cause the CVR Trust (as defined in Section 5.16 (a)not be obligated) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") accept for payment more than 9,158,155 Shares pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b.
(c) under the Exchange Act. On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Sub the Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the Offer to Purchase and cause to be disseminated a form of letter of transmittal and summary advertisement (collectively, together with any amendments and supplements thereto, the "Offer Documents"). The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published or sent to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information furnished by the Company expressly for inclusion in the Offer Documents. The information supplied by the Company expressly for inclusion in the Offer Documents and by Parent or the Purchaser expressly for inclusion in the Schedule 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
(d) Each of Parent and the Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to holders of the Shares, in each case as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, will promptly correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall Purchaser further will take all steps necessary to amend cause the Schedule 14D-1 or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a the reasonable opportunity to review and comment upon the Offer Documents prior to their filing initial Schedule 14D-1 before it is filed with the SEC or dissemination to the stockholders of the CompanySEC. In addition, Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Purchaser will provide to the Company and its counselcounsel with any comments or other communications, whether written or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments)oral, Parent, Merger Sub the Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companycommunications.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Acquisition Agreement (Intervoice Inc), Acquisition Agreement (Brite Voice Systems Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit ANNEX A hereto shall have occurred or be existingexisting (unless such event shall have been waived by Acquiror Sub), Acquiror shall cause Acquiror Sub to commence, and Acquiror Sub shall commence, the Offer at the Per Share Amount as promptly prompt as reasonably practicable after the date hereof, but in no event later than ten business fifteen (15) days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence hereof. The initial expiration date for the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SECINITIAL OFFER EXPIRATION DATE")) shall be no longer than twenty (20) business days following the commencement of the Offer. The obligations obligation of Parent and Merger Acquiror Sub to accept for payment, payment and pay for, any shares of Company Common Stock for Shares tendered pursuant to the Offer are shall be subject only to (i) the condition (the "MINIMUM CONDITION") that at least the number of Shares that, when combined with the Shares, if any, already owned by Acquiror and its direct and indirect subsidiaries, constitute fifty-one percent (51%) of the "Voting Shares" shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in Exhibit A. The initial expiration date ANNEX A hereto and to the terms and conditions of this Agreement. "VOTING SHARES" means the then outstanding Shares, together with all of the Offer shall be then issued and outstanding shares of Class A Preferred Stock, par value $.01 per share (the 25th business day following the commencement "Class A Preferred Stock") and all of the Shares issuable under Options (as defined in Section 2.07) that are or may become exercisable between the Tender Offer Acceptance Date (as defined below) and the initial "Expiration Effective Time (as defined in Section 2.02) or under any other option, warrant, convertible security or right or other commitment or arrangement in effect on the Tender Offer Acceptance Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Acquiror Sub expressly reserve reserves the right to waive any such condition (other than the Minimum Condition), to increase the Offer or modify price per Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, without that (notwithstanding Section 8.03) no change may be made which (A) decreases the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to price per Share payable in the Offer, (iiB) reduce reduces the Offer Price maximum number of Shares to be paid pursuant to purchased in the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the imposes conditions to the Offer that are in addition to those set forth in this AgreementANNEX A hereto, promptly after (D) amends or changes the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.terms
Appears in 2 contracts
Sources: Merger Agreement (Exigent International Inc), Merger Agreement (Harris Corp /De/)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and VIII hereof, (ii) none of the events or conditions set forth in paragraphs (a) through (e) or (h) Section II of Exhibit A Annex I hereto shall have occurred or and be existingexisting and (iii) the Company shall have complied with its obligations under Section 1.2 hereof, Purchaser shall, and Parent shall cause Purchaser, to commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable but in no event later than ten business days after the date of hereof, but no later than five (5) Business Days thereafter (or such other later date as the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"parties may mutually agree in writing). The obligations of Parent and Merger Sub to accept for paymentIn the Offer, and pay for, any shares of Company Common Stock tendered pursuant to each Share accepted by the Offer are subject to Purchaser in accordance with the conditions set forth in Exhibit A. The initial expiration date terms of the Offer shall be exchanged for the 25th business day following right to receive from the commencement Purchaser the Offer Price, without interest. The obligation of Purchaser to, and of Parent to cause Purchaser to, accept for payment and pay for any Shares tendered in the Offer and not withdrawn shall be subject to the satisfaction or earlier waiver of all the conditions of the Offer (set forth in Annex I, including the initial "Expiration Date," Minimum Tender Condition, and any expiration time to the terms and date established pursuant conditions of this Agreement. The conditions to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). set forth in Annex I are for the sole benefit of Parent and Merger Sub Purchaser and each of Parent and Purchaser expressly reserve reserves the right from time to time, subject to Sections 1.1(b) and 1.1(d) hereof, to waive any condition such condition, to increase the Offer Price, or modify to make any other changes in the terms and conditions of the Offer, except that, without . The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(b) Without the prior written consent of the Company, Merger Sub neither Parent nor Purchaser shall not (i) reduce decrease the number Offer Price or change the form of shares of Company Common Stock subject to consideration payable in the Offer, (ii) reduce decrease the Offer Price number of Shares sought to be paid pursuant to purchased in the Offer, (iii) change amend or waive satisfaction of the Minimum Tender Condition (as defined in Exhibit AAnnex I), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend impose conditions to the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject addition to the conditions to the Offer that are set forth in this Agreement, promptly after Annex I or (v) amend the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant conditions to the Offer set forth in Annex I in any manner that is adverse to the holders of the Shares.
(c) The Offer shall be made by means of an offer to purchase (the "Acceptance Date"“Offer to Purchase”) having such terms and conditions as set forth in Annex I hereto. As soon as practicable on the date the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Purchaser shall file or cause to be filed with the Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO (together with all shares of Company Common Stock validly tendered amendments, exhibits and not withdrawn pursuant supplements thereto, the “Schedule TO”) with respect to the Offer that will comply in all material respects with the provisions of all applicable federal securities laws, and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement, to the extent required (which documents, together with any supplements, exhibits or amendments thereto, and any other schedules, forms and ancillary Offer documents and instruments filed in connection with the Offer and related transactions are referred to collectively herein as the “Offer Documents”). Parent and Merger Sub are permitted Purchaser shall disseminate the Offer Documents to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date holders of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, Shares as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect . The Company shall promptly furnish to Parent and Purchaser all information concerning the Offer, which shall contain an offer to purchase and exchange and will contain Company that may be required by applicable securities laws or incorporate reasonably requested by reference all Parent or part of Purchaser for inclusion in the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which Offer Documents. Parent and Purchaser hereby further agree that the Schedule TO and the Offer will be made (including the Registration Statement)Documents, together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 when filed with the SEC and on the Offer Documents as so amended date first published, sent or supplemented to be disseminated given to the Company's ’s stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing not contain any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement 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, that no representation or warranty is made by Parent or Purchaser with respect to information supplied by or on behalf of the party Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company hereby agrees that discovers such the information shall promptly notify provided by or on behalf of the other party and an appropriate amendment Company specifically for inclusion or supplement describing such information shall be promptly incorporation by reference in the Schedule TO or the Offer Documents, when filed with the SEC andand on the date first published, sent or given to the Company’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of 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 Purchaser shall take all steps necessary to cause the Schedule TO and the Offer Documents, as amended, to reflect such corrected information, to be filed with the SEC and the other Offer Documents, as amended to reflect such corrected information, to be disseminated to the Company’s stockholders, in each case as and to the extent required by applicable lawsecurities laws, disseminated provided that, to the stockholders extent any information provided by or on behalf of the CompanyCompany shall have become false or misleading in any material respect, the Company shall bear all costs, fees and expenses related to the correction and filing of the revised Schedule TO and Offer Documents with the SEC. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents before they are filed with the SEC, and Parent and Purchaser shall give due consideration to all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Purchaser shall provide the Company and its counsel with copies of any written comments, and shall inform them of any oral comments, that Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents as promptly as practicable after receipt of such comments, and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(cd) Subject to the terms and conditions of this Agreement and the Offer, the Offer to Purchase shall provide that the Offer will expire at midnight, New York time, on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1 promulgated under the Exchange Act) after the date the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Purchaser agrees that after commencing the Offer, it shall not terminate or withdraw the Offer or, except as set forth in this Section 1.1(d), extend the expiration date of the Offer unless, at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived or, in the case of termination, such termination is in connection with the termination of this Agreement pursuant to Article VIII hereof. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent shall cause Purchaser to extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Purchaser becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer if such conditions may, in the reasonable judgment of Parent, be satisfied prior to the applicable termination date set forth in Section 8.2(a). Parent may cause Purchaser to (i) extend the expiration date of the Offer (as it may be extended) for any period required by any rule, regulation or interpretation of the SEC or the staff thereof applicable to the Offer and (ii) extend the expiration date of the Offer (as it may be extended) for up to two periods, each for up to five (5) Business Days, if on such expiration date the conditions for the Offer described in Annex I hereto, other than the Minimum Tender Condition, shall have been satisfied or earlier waived. Notwithstanding the foregoing, Purchaser (or Parent on its behalf) may, in its sole discretion provide a “subsequent offering period” for the Offer for a number of days in accordance with Rule 14d-11 promulgated under the Exchange Act (each such period, a “Subsequent Offering Period”).
(e) Subject to the terms and conditions set forth in this Agreement and the Offer, Purchaser shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after the applicable expiration date of the Offer (as it may be extended) and in any event in compliance with Rule 14e-1(c) promulgated under the Exchange Act. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer or during any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction only for any applicable federal back-up withholding or other Taxes payable by such holder. To the extent any such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. Parent shall provide, or cause to be provided to Merger Sub Purchaser, immediately preceding the applicable expiration time of the Offer (as it may be extended), the funds necessary to pay for any Shares of Common Stock that Purchaser accepts or is obligated to accept for payment pursuant to the Offer, and shall cause Purchaser to perform on a timely basis the funds necessary to purchase any shares all of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the OfferPurchaser’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within Offeror agrees to mail no later than the meaning Latest Mailing Date to the holders of Shares (the “Shareholders”) of the applicable rules and regulations Company an offer to purchase all of the Securities outstanding Shares, including Shares issuable (and Exchange Commission that, prior to the Expiry Time, are actually issued or are conditionally issued pursuant to Section 1.5) upon the exercise of Options, but excluding Shares owned by the Offeror and its affiliates, for consideration per Share of $13.75 in cash (as such offer may be amended or extended from time to time as permitted under this Agreement, the "SEC"“Offer”). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant Offer shall be subject only to the terms and conditions set out in Schedule “B” to this Agreement, as such may be amended in accordance with Section 1.1(c) hereof.
(b) The Offer will be made in all material respects in accordance with Applicable Laws and with applicable securities legislation in jurisdictions other than Canada where registered Shareholders are located in the English language and, if necessary under the Applicable Laws, the French language, provided that the Offeror shall not be required to make the Offer in any jurisdiction, other than Canada or the United States, where it would be illegal or, in the reasonable opinion of the Offeror, inadvisable to do so. The Offer will be open for acceptance until a time that is not earlier than 9:00 p.m. (Toronto time) on the 36th day, after the day that the Offer is mailed to Shareholders, or such later time and date as may be required by Applicable Laws, subject to the right of the Offeror in its sole discretion to extend from time to time the period during which Shares may be deposited under the Offer if the conditions set forth in Exhibit A. The initial expiration Schedule “B” hereto are not satisfied on the expiry date of the Offer as it may be extended (the time at which the Offer, as it may be extended, expires being referred to as the “Expiry Time”). Subject to the satisfaction or waiver of the conditions set forth in Schedule “B” hereto, the Offeror shall be within the 25th business day following time periods required by Applicable Laws take up and pay for all Shares validly tendered (and not properly withdrawn) pursuant to the commencement Offer as soon as practicable after the Expiry Time. The Offeror shall use its commercially reasonable efforts to consummate the Offer, subject only to the terms and conditions hereof.
(c) The Offeror expressly reserves the right, in its sole discretion, to modify or waive any term or condition of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub the Offeror shall not not:
(i) reduce the number of shares of Company Common Stock subject to the Offer, consideration per Share;
(ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable under the Offer (other than to add additional consideration);
(iii) otherwise add to, amend or change any of the Offer terms or conditions in a manner materially adverse to the Shareholders;
(iv) increase the Minimum Tender Condition or decrease the Minimum Tender Condition to less than 50.01% of the outstanding Shares on a fully-diluted basis; or
(v) decrease the number of Shares sought under the Offer.
(d) The Offeror agrees to provide the Company with a draft copy of the Offer and Circular, the letter of transmittal, the notice of guaranteed delivery and any other documents required to be mailed by the Offeror to Shareholders under Applicable Laws in connection with the Offer, and any supplements or amendments to such documents (such documents, collectively, the “Offer Documents”) prior to the filing or mailing thereof, on a confidential basis, and to provide the Company with a reasonable opportunity (to the extent possible with respect to supplements and amendments) to review and provide comments thereon, recognizing that whether or not such comments are reflected in the Offer Documents will be determined by the Offeror, acting reasonably. The Company shall provide to the Offeror all information pertaining to the Company and its Subsidiaries that is reasonably requested by the Offeror and is necessary or desirable for the preparation of the Circular.
(vie) otherwise amend The obligation of the Offeror to make the Offer is conditional on the prior satisfaction of the following conditions, all of which conditions are included for the sole benefit of the Offeror and any and all of which may be waived by the Offeror in any manner adverse to whole or in part in its sole discretion (other than the holders of Company Common Stock. Notwithstanding the foregoingcondition in paragraph (v) below, Merger Sub which may (but shall not be obligated to), without waived only with the consent of the Company and in its sole and absolute discretionCompany) without prejudice to any other rights it may have under this Agreement, (A) from time which conditions shall be deemed to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend upon the Offer for any period required by any rule, regulation, interpretation or position being made:
(i) the obligations of the SEC applicable Offeror hereunder shall not have been terminated pursuant to Section 6.1;
(ii) no circumstance, fact, change, event or occurrence caused by a person other than the Offer; Offeror shall have occurred that would render it impossible for one or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% more of the outstanding shares conditions set out in Schedule “B” to be satisfied;
(iii) the board of directors of the Company Common Stock. On shall have received the terms advice of its financial advisors and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares board of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date directors of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) have unanimously resolved to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which recommend that Shareholders accept the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counselnot have withdrawn such recommendation or changed, modified or Parent and Merger Sub and their counsel, respectively, prior to responding to qualified such recommendation or taken any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and other action or made any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable other public statement in connection with the Offer inconsistent with the determinations and recommendations referred to in Section 1.2(a);
(iv) the Company’s financial advisor shall have delivered a written form of the opinion described in Section 1.2(b);
(v) no cease trade order, injunction or other prohibition at law (other than in China) shall exist against the Offeror making the Offer or taking up or paying for offering the Shares deposited under the Offer;
(vi) following the date hereof, there shall not have occurred any Material Adverse Effect in respect of the Company;
(vii) to the extent that any covenants set forth herein may be performed or sale in any jurisdiction. If, at any time complied with prior to the time of consummation date of the Offer, any information relating the Company shall have complied in all material respects with such covenants;
(viii) the Offeror shall have received from all applicable Government Authorities (A) all waivers, rulings, consents, approvals or orders on such terms as it, acting reasonably, deems necessary for the making of the Offer and the mailing of the Offer Documents to Shareholders, and (B) assurances satisfactory to the CompanyOfferor, Merger Sub acting reasonably, that all waivers, rulings, consent, approvals or orders for the CVR Trustconsummation of the Offer will be obtained before the Expiry Time, Parentin each case excluding PRC Approvals;
(ix) no later than one business day prior to the Latest Mailing Date, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement shall have delivered to the Registration Statementdepositary under the Offer, so that any at its offices in Toronto, Ontario for mailing with the Offer Documents a sufficient quantity of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light commercial copies of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed Directors’ Circular prepared in accordance with the SEC terms of this Agreement; and, to the extent required
(x) lock-up agreements shall have been duly executed and delivered by applicable law, disseminated to the stockholders Shareholders holding an aggregate of not less than 42% of the Company.
Shares (cincluding Shares issuable upon exercise of the Options) Parent shall provide or cause to be provided to Merger Sub on a timely basis fully-diluted basis, including all of the funds necessary to purchase any shares directors and officers of the Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offerand shall not have been breached or terminated.
Appears in 2 contracts
Sources: Support Agreement (China Minmetals Non-Ferrous Metals Co.Ltd.), Support Agreement (China Minmetals Non-Ferrous Metals Co.Ltd.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set --------- forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten 10 business days after the date of the initial public announcement of this Agreement, Parent and Merger Sub shall Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer within shall be subject to (i) the meaning condition (the "Minimum Condition") that at least the number of Shares that when added to Shares already owned by Siemens Aktiengesellschaft and its direct and indirect wholly owned subsidiaries shall constitute a majority of the applicable rules then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights, excluding, however, any securities not convertible or exercisable on or prior to July 31, 2001 or which have an effective conversion or exercise price in excess of the Per Share Amount immediately prior to the expiration of the Offer) shall have been validly tendered and regulations not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of each of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made which decreases the Per Share Amount, waives the Minimum Condition, reduces the maximum number of Shares to be purchased in the Offer or imposes conditions to the Offer in addition to those set forth in Annex A hereto. Notwithstanding the foregoing, Purchaser may, without the consent of the Company, (i) extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to accept for payment Shares shall not be satisfied or waived, (ii) extend the Offer for any period required by any rule or regulation of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay foror the staff thereof, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject applicable --- to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, or (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any an aggregate period required by any rule, regulation, interpretation or position of not more than 10 business days beyond the SEC latest applicable to the Offer; date that would otherwise be permitted under clause (i) or (Cii) extend the Offer for a "subsequent offering period" (of this sentence, if, as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% such date, all of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall Purchaser's obligations to accept for payment and purchaseShares are satisfied or waived, as promptly as practicable after but the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares number of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent totals less than 90% of the outstanding Shares on a fully diluted basis. In addition, if, on the initial scheduled expiration date of the Offer, the only conditions remaining unsatisfied are the failure of the waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), the German Competition Act or any other applicable ------- foreign antitrust law, to have expired or been terminated, then, Purchaser shall extend the Offer from time to time until July 31, 2001. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in cash, upon the terms and Merger Sub are permitted subject to accept and 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. 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 applicable lawthe Securities Exchange Act of 1934, as amended (the "Exchange Act"). ------------ If the payment equal to the Per Share Amount in cash (the "Merger ------ Consideration") is to be made to a person other than the person in whose name ------------- the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule -------- TO") with respect to the Offer. -- The Schedule TO shall contain or shall incorporate by reference 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 such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each --------------- of Parent, Purchaser and the Company agrees to correct promptly any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect, and Parent and Merger Sub shall file Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and cause the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which . Parent and Purchaser shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and give the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing such documents being filed with the SEC or dissemination disseminated to the stockholders holders of the CompanyShares. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Purchaser shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel with any written comments (and orally, any oral comments), Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with provide the Company and its counsel, counsel with a reasonable opportunity to participate in the response of Parent or Parent and Merger Sub and their counsel, respectively, prior Purchaser to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Siemens Aktiengesellschaft/Adr), Merger Agreement (Siemens Aktiengesellschaft/Adr)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and (i) none of the events set forth in paragraphs (ab) through and (e) or (hd) of Exhibit A hereto Annex I to this Agreement shall have occurred or and be existing, (ii) the Company shall have complied with its obligations under Section 2.03(c) and Section 2.03(d) and (iii) this Agreement shall not have previously been validly terminated in accordance with Section 10.01, as promptly as reasonably practicable practicable, but in no event later than ten twelve (12) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the date of the public announcement of this Agreement, Parent shall cause Purchaser to, and Merger Sub shall Purchaser shall, commence the Offer (within the meaning of Rule 14d-2 promulgated under the applicable rules and regulations Exchange Act) the Offer for all of the Securities and Exchange Commission outstanding Company Common Shares (other than Company Common Shares described in Section 4.01(a)) for a price per Company Common Share equal to the "SEC"Offer Price (as adjusted as provided in Section 2.01(f)). The obligations date on which Purchaser commences the Offer, within the meaning of Parent and Merger Sub Rule 14d-2 promulgated under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”.
(b) As promptly as practicable on the later of: (i) the earliest date as of which Purchaser is permitted under applicable Law to accept for payment, and pay for, any shares of payment Company Common Stock Shares tendered pursuant to the Offer are subject to and (ii) the earliest date as of which each of the conditions set forth in Exhibit A. Annex I (the “Offer Conditions”) shall have been satisfied or waived, Purchaser shall (and Parent shall cause Purchaser to), except as contemplated by Section 2.01(d)(iv), accept for payment all Company Common Shares tendered pursuant to the Offer (and not validly withdrawn). The initial expiration date obligation of Purchaser to accept for payment Company Common Shares tendered pursuant to the Offer shall be subject only to the 25th business day following the commencement satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any other conditions). Promptly after the initial "Expiration Date," and acceptance for payment of any expiration time and date established Company Common Shares tendered pursuant to an authorized extension of the Offer as so extendedOffer, Purchaser shall also be defined herein as an "Expiration Date"). pay for such Company Common Shares.
(c) Parent and Merger Sub Purchaser expressly reserve the right to increase the Offer Price, waive any condition to Offer Condition or amend, modify or supplement any of the Offer Conditions or modify the terms of the Offer. Notwithstanding anything to the contrary contained in this Agreement, except that, neither Parent nor Purchaser shall (without the prior written consent of the Company, Merger Sub shall not ):
(i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit AAnnex I), add to ;
(ii) decrease the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders number of Company Common Stock, Shares sought to be purchased by Purchaser in the Offer;
(iii) reduce the Offer Price;
(iv) extend or otherwise change the expiration date of the Offer (except as provided below in this to the extent permitted or required pursuant to Section 1.01(a2.01(d), extend the Offer, );
(v) change the form of consideration payable in the Offer or Offer; or
(vi) otherwise amend amend, modify or supplement any of the Offer Conditions or terms of the Offer in any a manner adverse that adversely affects, or would reasonably be expected to adversely affect, the holders of Company Common StockShares.
(d) Unless extended as provided in this Agreement, the Offer shall expire on the date (the “Initial Expiration Date”) that is twenty (20) business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act ) after the Offer Commencement Date. Notwithstanding the foregoing, Merger Sub may (but i) Purchaser shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff or Nasdaq that is applicable to the Offer; provided, that in no event shall Purchaser be required to extend the Offer beyond the Outside Date, (ii) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (Can “Extended Expiration Date”), the Minimum Condition or the Regulatory Condition is not satisfied, then, to the extent requested in writing by the Company no less than two (2) business days prior to the applicable expiration date, Purchaser shall extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under one or more periods ending no later than the Exchange Act) Outside Date, to permit either of such Offer Conditions to be satisfied; provided, that no individual extension shall be for a period of three to twenty more than ten (10) business days and, provided further that Purchaser shall not be required to extend the Offer under this clause (ii) to a date beyond the date which is twenty (20) business days after the date on which the Regulatory Condition is satisfied, (iii) if, on the Initial Expiration Date or any Extended Expiration Date, any Offer Condition is not satisfied and this Agreement has not been terminated in order accordance with its terms, Purchaser may, in its discretion, extend the Offer for one or more periods, (iv) if the Company shall have requested in writing no less than two (2) business days prior to acquire at least the Initial Expiration Date, Purchaser shall extend the Offer for the period of time stated in the Company’s written request (which period shall not exceed ten (10) business days beyond the Initial Expiration Date) notwithstanding the satisfaction or waiver of all of the Offer Conditions on or prior to the Initial Expiration Date and (v) Purchaser may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) in accordance with Rule 14d-11 promulgated under the Exchange Act following the Acceptance Time, and, if immediately following the Acceptance Time, Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% but less than 90% of the outstanding shares of the Company Common StockShares outstanding at that time (which shares beneficially owned shall include shares tendered in the Offer and not withdrawn), to the extent reasonably requested by the Company, Purchaser shall provide for a subsequent offering period of at least ten (10) business days. On Subject to the terms and subject to the conditions to the Offer that are set forth in this AgreementAgreement and the Offer, promptly after the Expiration DateParent shall cause Purchaser to, either Parent or Merger Sub shall and Purchaser shall, accept for payment and purchase, pay for all Company Common Shares validly tendered and not withdrawn during such subsequent offering period as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of any such Company Common Stock validly Shares are tendered during such subsequent offering period and not withdrawn pursuant to in any event in compliance with Rule 14e-1(c) promulgated under the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawExchange Act.
(be) As promptly The Offer may be terminated prior to its expiration date (as reasonably practicable such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in no event later than ten business days accordance with Section 10.01.
(f) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Company Common Shares occurring or having a record date on or after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended Agreement and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered payment by Purchaser for the Company Common Shares; provided that this subsection (f) shall not affect or Parent and which should be set forth in an amendment or supplement to supersede the Registration Statement, so that any provisions of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanySection 5.01(b) hereof.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Cnet Networks Inc), Merger Agreement (CBS Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none VII, by the later of the events set forth in paragraphs (ai) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of this Agreement and (ii) the public announcement date on which the Company files its Annual Report on Form 10-K for the 2015 fiscal year with the SEC (as defined below), Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) In accordance with the terms and conditions of this Agreement, Parent 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 I (collectively, the “Offer Conditions”) and, for the avoidance of doubt, no other conditions, Merger Sub shall commence (and Parent shall cause Merger Sub to), at or as promptly as practicable following the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission Expiration Time, irrevocably accept for payment (the "SEC"). The obligations time of Parent and Merger Sub to accept 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 of Company Common Stock validly tendered and pay fornot properly withdrawn 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 tendered that Merger Sub becomes obligated to purchase pursuant to the Offer.
(c) The Offer are subject shall be made by means of an offer to purchase (the conditions “Offer to Purchase”) in accordance with the terms set forth in Exhibit A. The initial expiration date this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify not inconsistent with the terms of the Offerthis Agreement; provided, except thathowever, 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 (i) reduce the number of shares of Company Common Stock subject to the Offerto, (iiA) reduce decrease the Offer Price to be paid pursuant to the OfferPrice, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vB) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose any conditions to the Offer other than the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions (i) in a manner that adversely affects the holders of Company Common Stock or that makes such Offer Condition more difficult to satisfy or (viii) 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 amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding The Offer may not be terminated prior to its scheduled Expiration Time, 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 foregoingdate that is 20 business days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such initial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.01(e), the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to the parties’ respective rights to terminate the Agreement pursuant to Article VII, the Offer may or shall, as applicable, be extended 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 Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and Parent shall cause Merger Sub to, extend the 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, (1) Merger Sub may (but shall not be obligated required to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer on up to 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) 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 the Company shall have requested in writing that Merger Sub so extend the Offer;
(ii) Merger Sub shall extend the Offer for any the minimum period required by any rule, regulationapplicable Law, interpretation or position of the SEC applicable to or its staff or The NASDAQ Stock Market LLC (“NASDAQ”) or its staff;
(iii) if, at the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of then-scheduled Expiration Time, the Company Common Stock. On brings or shall have brought any action in accordance with Section 8.08 to enforce specifically the performance of the terms and subject to the conditions to the Offer that are set forth in provisions of this Agreement, promptly after the Expiration Date, either Agreement by Parent or Merger Sub Sub, the Expiration Time shall accept be extended (A) for payment and purchasethe period during which such action is pending or (B) by such other time period established by the court presiding over such action, as promptly as practicable after the date on which Parent or Merger Sub (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) first accepts 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.
(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 for payment pursuant 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 "Acceptance Date"), all Offer Price shall provide to the holders of shares of Company Common Stock validly tendered 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 withdrawn acquire any shares of Company Common Stock pursuant to the Offer that and shall cause any depository acting on behalf of Parent and or Merger Sub are permitted to accept and pay for under return, in accordance with applicable lawLaw, all tendered shares of Company Common Stock to the registered holders thereof.
(bh) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all exhibits, which shall contain an offer to purchase amendments and exchange and supplements thereto, the “Schedule TO”) that will contain or incorporate by reference all or part the Offer to Purchase and form of the Registration Statement and a related letter of transmittal and summary advertisement (such the Schedule TO and the TO, together with all documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments theretomade, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of shares of Company Common Stock. Each of Parent, Merger Sub and the Company shall agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall take Parent further agrees to use all steps necessary reasonable efforts to amend or supplement the Offer Documents and to promptly cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to promptly be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case as and to the extent required by applicable Law. The Company shall promptly furnish or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts otherwise make available to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effectiveParent, Merger Sub or Parent’s legal counsel any information concerning the Company shall cause and the CVR Trust Company’s Subsidiaries that is required by the Exchange Act to file be set forth in the final prospectus included therein under Rule 424(b) promulgated pursuant to Offer Documents or reasonably requested by Parent or Merger Sub for inclusion in the Securities ActOffer Documents. Each of the parties hereto The Company and their respective its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Sub agree to provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel with any written comments (and orally, including a summary of any oral comments), ) that Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments. Each of Parent and Merger Sub shall consult with give the Company and its counsel, counsel a reasonable opportunity to participate in the response to any comments of the SEC or Parent its staff with respect to the Offer Documents and Merger Sub and their counsel, respectively, prior to responding shall respond promptly to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company.
(i) Parent, Merger Sub or and the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement paying agent with respect to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information Offer shall be promptly filed with entitled to deduct and withhold from the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase Offer Price payable pursuant to the OfferOffer such amounts as are required to be deducted and withheld with respect to the making of such payment under 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
Sources: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII Section 7.1 hereof and none of the events no event set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or and be existing, Parent shall cause Merger Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the "Securities Exchange Act")) the Offer as promptly as reasonably practicable practicable, but in no event later than ten five business days after the date of following the public announcement of this Agreement; provided, however, that Parent may designate another direct subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(c) under the Securities Exchange Act) in the Offer, in which case references herein to Merger Sub shall be deemed to apply to such subsidiary, as appropriate. The obligation of Parent to cause Merger Sub to accept for payment any Shares tendered shall be subject to the satisfaction of only those conditions set forth in Annex I hereto (the "Offer Conditions"). The Per Share Amount shall be net to each seller in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company agrees that no Shares held by the Company shall be tendered pursuant to the Offer.
(b) Without the prior written consent of the Company, Parent shall not permit Merger Sub to (i) decrease the Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought in the Offer, (iii) amend or waive satisfaction of the Minimum Condition (as defined in Annex I hereto) 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 that nothing herein shall prohibit any waiver of any condition or term of the Offer (other than the Minimum Condition) or any other action permitted hereby. Upon the terms and subject to the conditions of the Offer, Parent shall cause Merger Sub to accept for payment and purchase, as soon as practicable after the expiration of the Offer, all Shares validly tendered and not withdrawn prior to the expiration of the Offer. It is agreed that the Offer Conditions are for the benefit of Merger Sub and may be asserted by Merger Sub regardless of the circumstances giving rise to any such condition (except for any action or inaction by Parent or Merger Sub constituting a breach of this Agreement) or, except with respect to the Minimum Condition, may be waived by Merger Sub, in whole or in part at any time and from time to time, in its sole discretion.
(c) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") having only the conditions set forth in Annex I hereto. On the date the Offer is commenced, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of file with the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which Offer that shall contain (including as an offer to purchase and exchange and will contain exhibit) or incorporate by reference all or part the Offer to Purchase and forms of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the "Offer Documents")) and shall mail the Offer to Purchase to the holders of the Shares. Each of Parent, Parent and Merger Sub and agree promptly to correct the Company shall promptly correct any information provided by it for use in the Offer Documents Schedule 14D-1 if and to the extent that such information shall have originally been or it shall become false or and misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall take all steps necessary Company, with respect to amend or supplement written information supplied by it specifically for use in the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other handSchedule 14D-1, shall provide to the Company and its counsel, or promptly notify Parent and Merger Sub of any required corrections of such information and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or cooperate with the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to correcting such information) and to supplement the Offer Documents promptly after information contained in the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior Schedule 14D-1 to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, include any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth that shall become necessary in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary order to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub shall take all steps necessary to cause the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall Schedule 14D- 1 as so corrected to be promptly filed with the SEC and, and disseminated to the Company's stockholders to the extent required by applicable lawLaws, disseminated including federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents before they are filed with the SEC. In addition, Parent and Merger Sub agree to provide the Company and its counsel in writing with any comments or other communications that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the stockholders Offer Documents promptly after the receipt of the Companysuch comments or other communications.
(cd) Parent The Offer to Purchase shall provide for an initial expiration date for the Offer (the "Expiration Date") of 20 business days (as defined in Rule 14d-1 under the Securities Exchange Act) from the date of commencement of the Offer. Parent and Merger Sub agree that they shall not terminate or cause withdraw the Offer or extend the Expiration Date unless at the Expiration Date any of the Offer Conditions shall not have been satisfied or earlier waived. Notwithstanding the foregoing, Merger Sub may (i) extend the Expiration Date (including as it may be extended) for up to ten business days in connection with an increase in the consideration to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase paid pursuant to the OfferOffer so as to comply with applicable rules and regulations of the SEC and (ii) extend the initial Expiration Date (including as it may be extended) for up to ten business days, notwithstanding that on such Expiration Date the Offer Conditions shall have been satisfied or waived, if the number of Shares that have been validly tendered and not withdrawn represents more than 50 percent but less than 90 percent of the then issued and outstanding Shares.
Appears in 2 contracts
Sources: Merger Agreement (Em Industries Inc), Merger Agreement (Cn Biosciences Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof IX, and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto that no event shall have occurred or and be existing, as promptly as reasonably practicable but in no event later than ten business days after continuing that would result the date failure to be satisfied of the public announcement any of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. Annex A, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer no earlier than September 22, 2010.
(b) The initial expiration date of the Offer shall be midnight (New York City time) on the 25th later of (x) October 20, 2010 and (y) the date that is 20 business day following days from the commencement of date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) (the initial "“Expiration Date," ” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "“Expiration Date"”).
(c) The obligations of Purchaser to commence the Offer and accept for payment, and pay for, any Public Shares tendered pursuant to the Offer are subject only to (i) the conditions set forth in Annex A and (ii) the non-waivable condition that pursuant to the Offer, prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Public Shares which constitutes at least a majority of the outstanding Public Shares (assuming the exercise of all outstanding Stock Options having an exercise price less than the Offer Price, and excluding from such calculation any Rollover Shares) (the “Minimum Condition”). Parent The conditions to the Offer set forth in Annex A are for the sole benefit of Purchaser and Merger Sub may be asserted by Purchaser regardless of the circumstances (including any action or inaction by Purchaser; provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition. The failure of Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time.
(d) Purchaser expressly reserve reserves the right (i) to increase the Offer Price and (ii) to waive any condition to the Offer or modify the terms of the Offer, except that the Minimum Condition may not be waived and that, without the written consent of the Company, Merger Sub Purchaser shall not (iA) reduce the number of shares of Company Common Stock Public Shares subject to the Offer, (iiB) except as provided in Section 4.4, reduce the Offer Price to be paid pursuant to the OfferPrice, (iiiC) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit Annex A or modify any condition set forth in Exhibit Annex A in any manner adverse to the holders of Company Common Stock, Public Shares or (iv) except as provided below in this Section 1.01(a), extend the Offer, (vD) change the form of consideration payable in the Offer or Offer.
(vie) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub Purchaser may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, discretion (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (Bi) extend the Offer for one or more consecutive increments of not more than ten business days each, if at any otherwise scheduled Expiration Date of the Offer any of the conditions to Purchaser’s obligation to purchase Public Shares in the Offer are not satisfied or waived, (ii) extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; , or (Ciii) extend the Offer for make available a "“subsequent offering period" (as provided by ” in accordance with Rule 14d-11 of the Exchange Act.
(f) Purchaser shall comply with the obligations respecting prompt payment and announcement under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , and, without limiting the generality of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreementforegoing, promptly after the Expiration Date, either Parent or Merger Sub Purchaser shall accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Common Stock Public Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay promptly following the acceptance of such Public Shares for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") payment pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing terms and subject to the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement conditions of the OfferOffer and this Agreement. This paragraph shall not be deemed to impair, Parent and Merger Sub shall file with limit or otherwise restrict in any manner the SEC, and cause right of Purchaser to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein terminate this Agreement pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanyArticle IX.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Share Exchange Agreement (Res Care Inc /Ky/), Share Exchange Agreement (Res Care Inc /Ky/)
The Offer. (a) Subject Provided that nothing shall have occurred that, had the Offer been commenced, would give rise to a right to terminate the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms Offer pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing11 hereof, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub Subsidiary shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations of 1▇▇▇ ▇▇▇) the Securities and Exchange Commission (the "SEC")Offer. The obligations Offer and the obligation of Parent and Merger Sub Subsidiary to accept for payment, payment and to pay for, for any shares of Company Common Stock tendered pursuant Tender Shares shall be subject only to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer condition that there shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify validly tendered in accordance with the terms of the Offer, except prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, Tender Shares that, without together with the written consent Tender Shares then directly or indirectly owned by Parent and/or Merger Subsidiary, represent a majority of the Company, Voting Shares (the “Minimum Condition”) and to the other conditions set forth in Annex I hereto. Merger Sub shall not Subsidiary expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer; provided that unless otherwise provided by this Agreement or previously approved by the Company in writing (i) reduce the number of shares of Company Common Stock subject to the OfferMinimum Condition may not be waived, (ii) reduce the Offer Price to no change may be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change made that changes the form of consideration payable to be paid, decreases the Offer Price or the number of Tender Shares sought in the Offer or (vi) otherwise amend imposes conditions to the Offer in addition to those set forth in Annex I or amends any terms of the Offer in any manner adverse to the holders of Company Common StockTender Shares and (iii) the Offer may not be extended except as set forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is 20 Business Days (determined using Rule 14d-1(g)(3) of the 1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Notwithstanding the foregoing, Merger Sub may Subsidiary shall extend the Offer (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A1) from time to time extend for successive periods of no more than 10 Business Days each (or such longer period as may be consented to by the Offer Company, such consent not to be unreasonably withheld) if, at the scheduled Expiration Dateor extended expiration date of the Offer, any of the conditions of to the Offer shall not have been satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, and (B2) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by Applicable Law. Following expiration of the Offer; , Merger Subsidiary may, in its sole discretion, provide one or (C) extend the Offer for a "more subsequent offering period" periods (as provided by together, the “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares 1934 Act. Subject to the foregoing, including the requirements of the Company Common Stock. On Rule 14d-11, and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after expiration of the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")Offer, all shares of Company Common Stock Tender Shares (x) validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law(y) validly tendered in the Subsequent Offering Period.
(b) As promptly soon as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer to purchase and exchange and will contain include the summary term sheet required thereby and, as exhibits or incorporate incorporated by reference all or part of thereto, the Registration Statement Offer to Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made (including the Registration Statement)collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of Tender 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 Sub Subsidiary and the Company shall 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 originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), respect. Parent and each of Parent, Merger Sub and the Company shall Subsidiary agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Tender Shares, in each case as and to the extent required by or deemed advisable under applicable U.S. federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger Sub, on the one hand, Subsidiary shall give reasonable and the Company on behalf of the CVR Trust, on the other hand, shall provide good faith consideration to any comments made by the Company and its counsel, or . Parent and Merger Sub Subsidiary shall provide the Company and their counselits counsel with (i) any comments or other communications, respectivelywhether written or oral, in writing any written comments (and orally, any oral comments), that Parent, Merger Sub Subsidiary or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of such those comments or other communications and shall consult with (ii) a reasonable opportunity to participate in the Company and its counsel, or response of Parent and Merger Sub Subsidiary to those comments and their counselto provide comments on that response (to which reasonable and good faith consideration shall be given), respectively, prior to responding to any such comments. The Company will advise including by participating with Parent and Merger Sub promptly after it receives notice that the Registration Statement and Subsidiary or their counsel in any supplement discussions or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection meetings with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanySEC.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Kla Tencor Corp), Merger Agreement (Therma Wave Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred and be continuing and not have been waived by Parent or be existingPurchaser, as promptly as reasonably practicable but and, in no event later than any event, within ten business days after (10) Business Days of the date of the public announcement of this Agreement, Parent and Merger Sub the Purchaser shall commence the Offer (within the meaning of Rule 14d-2 under the applicable U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations of thereunder, the Securities and “Exchange Commission (Act”)) the "SEC")Offer to purchase for cash all Shares at the Offer Price. The obligations of Parent and Merger Sub the Purchaser to accept for paymentpayment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents a majority of the Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. Subject to the prior satisfaction or waiver by Parent or the Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex I hereto, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, any shares of Company Common Stock for all Shares validly tendered and not withdrawn pursuant to the Offer are subject to promptly after expiration of the conditions set forth in Exhibit A. The Offer, which shall initially be the 20th Business Day following the commencement of the Offer; provided, however, that (x) if on the initial expiration date of the Offer shall be the 25th business day following the commencement or on any subsequent scheduled expiration date of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined extended in Exhibit Aaccordance with this Agreement), add all conditions to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived waived, the Purchaser may, from time to time, in its sole discretion, extend the Offer for such period as the Purchaser may determine; provided, however, that if on the initial expiration date of the Offer the conditions to the Offer set forth in paragraphs (c), (d) and (e) of Annex I hereto shall each be satisfied (or, in the case of paragraphs (d) and (e), if any such breach or failure to comply that has caused such non-satisfaction of the condition is objectively curable within ten (10) Business Days) but any other condition to the Offer shall not have been satisfied or waived, Purchaser shall be obligated to extend the Offer for one or more periods of time of up to ten (10) Business Days each (or such longer period as Purchaser may agree in writing) until such time as such conditions are have been satisfied or waived waived; provided, that Purchaser shall not be required to extend the extent permitted by this AgreementOffer beyond the date that is thirty (30) Business Days following the initial expiration of the Offer; (By) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or and (Cz) extend the Offer for Purchaser may, in its sole discretion, provide a "“subsequent offering period" ” for three (as provided by 3) to twenty (20) Business Days to acquire outstanding untendered Shares in accordance with Rule 14d-11 under the Exchange Act) Act if the Minimum Condition and all of the other conditions set forth in Annex I hereto are satisfied or waived, but the number of Shares that have been validly tendered and not withdrawn in the Offer and accepted for a period of three to twenty business days in order to acquire at least payment, together with any Shares then owned by Parent, is less than 90% of the outstanding shares Shares. Purchaser shall not extend the Offer following the termination of this Agreement. In addition, the Purchaser may increase the Offer Price and extend the Offer to the extent required by Law in connection with such increase, in each case in its sole discretion and without the Company’s consent, but Purchaser and Parent shall not, without the prior written consent of the Company Common Stock. On Company, (A) decrease the terms and subject Offer Price (as it may have been increased hereunder) or change the form of consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to the Offer, (C) amend or waive the Minimum Condition, (D) add to the conditions to the Offer that are set forth in Annex I hereto or modify such conditions in a manner adverse to the holders of Shares, (E) extend the Offer, except as permitted by this Section 1.1(a) or (F) make any other change in the terms or conditions of the Offer that is adverse to the holders of Shares. The Offer may not be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), promptly after unless this Agreement is validly terminated in accordance with Article VIII. If Purchaser shall commence a subsequent offering period in connection with the Expiration DateOffer, either Parent or Merger Sub Purchaser shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawduring such subsequent offering period.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the OfferOffer is commenced, Parent and Merger Sub Purchaser shall file with the United States Securities and Exchange Commission (the “SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, ”) a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an include the offer to purchase and exchange and will contain or incorporate by reference all or part purchase, form of the Registration Statement and a related letter of transmittal and summary advertisement form of notice of guaranteed delivery (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). Subject to the Company’s compliance with Section 1.2(b), Parent and the Purchaser shall cause the Offer Documents to be disseminated to holders of Shares as required by applicable U.S. federal securities laws. Each of Parent, Merger Sub Parent and the Company shall 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 such information it shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall Law. The Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case holders of Shares as and to the extent required by or deemed advisable under applicable U.S. federal securities laws. Each of The Company shall promptly furnish to Parent and Purchaser all information concerning the parties hereto shall use all reasonable efforts to have Company that is required or reasonably requested by Parent or Purchaser in connection with the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant obligations relating to the OfferOffer Documents contained in this Section 1.1(b). Following the time the Registration Statement is declared effective, the The Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the Company. and Parent and Merger Sub, on the one hand, Purchaser shall give reasonable and the Company on behalf of the CVR Trust, on the other hand, shall provide good faith consideration to any comments made by the Company and its counsel. In addition, or Parent and Merger Sub the Purchaser agree to provide the Company and their counsel, respectively, in writing its counsel with any written comments (and orally, any oral comments), or communications that Parent, Merger Sub the Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or the Purchaser’s, as the case may be, receipt of such comments comments, and any written or oral responses thereto, and shall consult with provide the Company and its counsel, or counsel a reasonable opportunity to participate in the response of Parent and Merger Sub Purchaser to those comments and their counselto provide comments on that response (to which reasonable and good faith consideration shall be given), respectively, prior to responding to any such comments. The Company will advise including by participating with Parent and Merger Sub promptly after it receives notice that the Registration Statement and Purchaser or their counsel in any supplement discussions or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection meetings with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanySEC.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Kinetic Concepts Inc /Tx/), Merger Agreement (Lifecell Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII IX hereof and none of the events set forth in paragraphs Annex I hereto (athe ‘‘Tender Offer Conditions’’) through (e) or (h) of Exhibit A hereto shall have occurred or be existingoccurred, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreementpracticable, Parent and Merger Sub shall cause Purchaser to commence the Offer (within the meaning of the applicable rules Exchange Act) an offer to purchase all outstanding shares of Seller Common Stock at the Offer Price, and regulations shall, upon commencement of the Offer but after affording the Seller a reasonable opportunity to review and comment thereon, file a Schedule TO and all other necessary documents with the Securities and Exchange Commission (the "‘‘SEC"’’) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the ‘‘Offer Documents’’), and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligations Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, Purchaser shall, and Parent and Merger Sub to shall cause it to, as soon as possible after the expiration of the Offer, accept for payment, and pay forfor (after giving effect to any required withholding Tax), any all shares of Company Seller Common Stock validly tendered pursuant to the Offer are subject to and not withdrawn (the conditions set forth in Exhibit A. The initial expiration date of acceptance for payment, the Offer shall be ‘‘Acceptance Date’’).
(b) Without the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the CompanySeller, Merger Sub the Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce decrease the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company shares of Seller Common Stock. Notwithstanding The Offer shall remain open until the foregoing, Merger Sub may date that is twenty (but shall not be obligated to20) Business Days after the commencement of the Offer (the ‘‘Expiration Date’’), without unless Purchaser shall have extended the consent period of time for which the Company Offer is open pursuant to, and in its sole accordance with, the two succeeding sentences or as may be required by applicable Laws, in which event the term ‘‘Expiration Date’’ shall mean the latest time and absolute discretiondate as the Offer, (A) from time to time extend as so extended, may expire; provided, however, that Purchaser may provide a subsequent offering period after the Offer ifExpiration Date, in accordance with Rule 14d-ll under the Exchange Act. If at the scheduled any Expiration Date, any of the conditions of the Tender Offer shall Conditions is not have been satisfied or waived by Purchaser, Purchaser may extend the Offer from time to time; provided, however, that, on the scheduled Expiration Date of the Offer, (i) if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to Merger, including clearance under the German Act against Restraints of Competition, shall have not expired or been terminated, Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations , including clearance under the German Act against Restraints of Competition, (ii) if any of the Tender Offer Conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, Purchaser shall extend the Offer from time to time until the earlier of (A) five (5) Business Days after the time such time as such condition or conditions are satisfied shall no longer exist or waived to the extent permitted by this Agreement; (B) extend such time at which the Offer for any period required by any rule, regulation, interpretation matters described in such paragraphs (a) or position of the SEC applicable to the Offer(b) shall have become final and non-appealable; or (Ciii) extend if all of the Tender Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least Conditions are satisfied and more than 50% but less than 90% of the outstanding shares of Seller Common Stock on a fully diluted basis (as defined in Annex I) have been validly tendered and not withdrawn in the Company Common StockOffer, Purchaser shall have the right, in its sole discretion, but not the obligation to extend the Offer from time to time up to a maximum of ten (10) additional Business Days in the aggregate. On Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after Agreement and the satisfaction of all the Tender Offer Conditions as of any Expiration Date, either Parent or Merger Sub shall Purchaser will accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably soon as practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement Expiration Date of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Digitas Inc), Merger Agreement (Digitas Inc)
The Offer. (a) Subject to the conditions provisions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this AgreementAugust 16, 1995, Sub shall, and Parent and Merger shall cause Sub shall commence the Offer to, commence, within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act (as hereinafter defined), the Securities and Exchange Commission (the "SEC")Offer. The obligations obligation of Sub to, and of Parent to cause Sub to, commence the Offer and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the conditions set forth in Exhibit A. A and to the terms and conditions of this Agreement. The initial expiration date of the Offer shall be September 15, 1995. Without the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Company Common Stock subject to the Offer, (iiiii) reduce the Offer Price price per share of Common Stock to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the OfferOffer if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer Offer, or (vi) otherwise amend amend, add or waive any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to that would adversely affect the holders of Company Common Stockor its stockholders. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretionCompany, (A) from time to time extend the Offer if, (i) if at the then scheduled Expiration Date, expiration date of the Offer any of the conditions to Sub's obligation to accept for payment and pay for shares of the Offer Common Stock shall not have been satisfied or waived waived, until such time as the later of (x) any period during which the Offer may remain open pursuant to clauses (ii)-(v) below, and (y) the fifth business day after the date Sub reasonably believes to be the earliest date on which such conditions are satisfied or waived to the extent permitted by this Agreementmay be satisfied; (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC (as hereinafter defined) or its staff applicable to the Offer; or (Ciii) extend if the Offer condition in clause (f) of Exhibit A referring to a 10 business day period shall not have been satisfied, for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of up to three to twenty business days in order to acquire at least after the scheduled expiration date of such period; (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 the Company Common Stock, for an aggregate period of not more than 15 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i), (ii) or (iii) of this sentence; and (v) 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, for an aggregate period of not more than 10 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i), (ii), (iii) or (iv) of this sentence (provided that Sub shall acknowledge that, except in the case of an occurrence of an event that would cause the condition contained in Section 8.1(b) not to be satisfied, all the Offer 7 conditions shall be deemed to be waived and all shares of Common Stock which are validly tendered and not withdrawn upon the expiration of such extended period will be accepted and purchased. On the terms and subject In addition to the conditions right of Sub to extend the Offer pursuant to the Offer that are set forth in this Agreementprevious sentence, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after have the right to extend the Offer until five business days from the date on which Sub receives all certificates required to have been delivered to it pursuant to Section 7.13 on or prior to the scheduled expiration date in effect prior to the extension permitted by this sentence. The obligation of the Company to provide certificates pursuant to Section 7.13 and the right of Parent or Merger to terminate this Agreement pursuant to Section 9.3(c)(ii) shall remain in effect until Sub (as the case may be) first accepts acquires shares for payment of Common Stock pursuant to the Offer without affecting the right of Sub to extend the Offer pursuant to clause (iv) above; provided, however, that if Sub exercises its right to extend the "Acceptance Date"Offer pursuant to clause (v) above, the Company's obligation to provide certificates pursuant to Section 7.13 shall cease and the Parent shall have no further right to terminate this Agreement pursuant to Section 9.1(c)(ii). So long as this Agreement is in effect and the Offer conditions have not been satisfied or waived, Sub shall, and Parent shall cause Sub to, cause the Offer not to expire. Subject to the terms and conditions of the Offer and the Agreement, Sub shall, and Parent shall cause Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawas soon as practicable after the expiration of the Offer.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the Securities and Exchange Commission (the "SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, ") a Tender Offer Statement on Schedule TO 14D-1 with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO 14D-1 and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, the "Offer Documents"). The Company and its counsel shall be given an opportunity to review and comment upon the Offer Documents prior to the filing thereof with the SEC. The Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the "Exchange Act"), and on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Sub with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect material
(whether by virtue of a material misstatement, material omission c) Prior to or otherwise), and each of Parent, Merger Sub and the Company 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 concurrently with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation expiration of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Humana Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of on Exhibit A hereto shall have occurred or be existing1, Merger Sub shall, as promptly as reasonably practicable but and in no event later than ten business days (10) Business Days after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)) a tender offer to purchase all of the Securities and Exchange Commission outstanding shares of Common Stock, par value $0.01 per share of the Company, including, if any, the associated preferred stock purchase rights (the "SEC"“Rights,” and together with the shares of the Company’s Common Stock, the “Shares”) issued pursuant to the Rights Agreement, dated as of September 13, 1999, between the Company and the Bank of New York (the “Rights Agreement”), at a price of $95.50 per Share in cash, net to the seller but subject to any required withholding of Taxes (such tender offer and price as they may from time to time be amended in accordance with this Agreement, the “Offer,” and the “Offer Price,” respectively). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject only to the conditions set forth in Exhibit A. 1. The initial expiration date of the Offer shall be the 25th business day following later of (x) midnight (New York City time) on the commencement of date which is 20 Business Days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) and (y) January 2, 2008 (the initial "“Expiration Date," ” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "“Expiration Date"”). Parent and Merger Sub expressly reserve reserves the right (x) if the Minimum Tender Condition (as defined in Exhibit 1) has not been satisfied or if a Change of Recommendation has been made, to increase the Offer Price and (y) to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the OfferPrice, (iii) change modify, amend or waive the Minimum Tender Condition Condition, (as defined in Exhibit A), iv) add to the conditions set forth in Exhibit A 1 or modify or amend any condition set forth in Exhibit A 1 in any manner adverse to the holders of Company Common StockShares, (ivv) except as otherwise provided below in this Section 1.01(a1.1(a), extend the Offer, (vvi) change the form of consideration payable in the Offer or (vivii) otherwise except as may be required by any Governmental Entity, modify or amend the terms of the Offer in any manner adverse to the holders of Company Common Stockthe Shares. Merger Sub shall not, and Parent agrees that it shall cause Merger Sub not to, terminate or withdraw the Offer other than in connection with the termination of this Agreement in accordance with Section 8.1 hereof. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, in its discretion, without the consent of the Company and in its sole and absolute discretionCompany, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (Bi) extend the Offer for one or more consecutive increments of not more than ten Business Days each, if at any otherwise scheduled Expiration Date of the Offer any of the conditions to Merger Sub’s obligation to purchase Shares are not satisfied or waived, (ii) extend the Offer for the minimum period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; Offer or (Ciii) make available a “subsequent offering period” in accordance with Exchange Act Rule 14d-11 (any extension pursuant to this sentence being a “Parent Extension”). In addition, (x) if at any otherwise scheduled Expiration Date of the Offer any condition to the Offer is not satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one or more consecutive increments of not more than ten Business Days each until the earlier of the termination of this Agreement in accordance with its terms and May 23, 2008 (the “Outside Date”) and (y) at any time prior to the initial Expiration Date, Merger Sub shall and Parent shall cause Merger Sub to, extend the Offer at the request of the Company one time for ten Business Days if the Company has received an Acquisition Proposal prior to the initial Expiration Date that has not been withdrawn as of the date of the request for the extension of the Offer by the Company; provided, that nothing in clause (y) shall relieve the Company of any of its obligations under this Agreement, including Section 6.2; provided, further, that no request by the Company to Parent and Merger Sub to extend the Offer pursuant to this sentence, in and of itself, shall be considered a "violation of Section 6.2. In addition, Merger Sub 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 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" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least , Parent and Merger Sub, directly or indirectly, own more than 90% of the outstanding shares of the Company Common StockShares. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall accept for payment and purchase, as promptly as practicable after the date on which Parent or cause Merger Sub (as the case may be) first accepts shares to, accept and pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer as soon as practicable after the expiration of the Offer, and, in any event, in compliance with Rule 14e-1 under the Exchange Act (the date of acceptance for payment for Shares validly tendered and not withdrawn pursuant to the Offer, the “Purchase Date”). Without the prior written consent of the Company, Parent shall cause Merger Sub not to, and Merger Sub shall not, accept for payment or pay for any Shares in the Offer if, as a result, Merger Sub would acquire less than the number of Shares necessary to satisfy the Minimum Tender Condition.
Appears in 1 contract
Sources: Merger Agreement (Genlyte Group Inc)
The Offer. (a) Subject to Provided that (i) this Agreement shall not have been terminated in accordance with Article VIII hereof, (ii) nothing shall have occurred that would render any of the conditions set forth in Section 1 of Annex B incapable of being satisfied and (iii) none of the conditions set forth in Section 2 of Annex B hereto shall have occurred and be continuing, Parent shall cause Purchaser (and the Company shall cooperate with Parent and Purchaser subject to Section 6.02(e)) to commence (within the meaning of Rule 14d-2 of the Exchange Act), as promptly as reasonably practicable after the date of this Agreement but in no event more than ten (10) Business Days thereafter, an offer to purchase all outstanding shares of Company Common Stock (including the associated rights to purchase shares of capital stock of the Company (“Rights”) issued pursuant to that certain Shareholder Rights Plan dated as of December 23, 2006, by and between the Company and W▇▇▇▇ Fargo Bank, National Association, as Rights Agent (the “Rights Plan”)) (each such share of Company Common Stock, together with the associated Rights, a “Share” and collectively, “Shares”) at a price of $19.50 per Share, net to the sellers in cash (such amount, or any greater amount per Share paid pursuant to the Offer, the “Offer Price”). Promptly after the later of: (i) the earliest date as of which Parent is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Tender Offer Conditions shall have been satisfied or waived (and in any event in compliance with Rule 14e-1(c)), Purchaser shall, and Parent shall cause it to, accept for payment, and pay for (after giving effect to any required withholding Tax), all Shares validly tendered pursuant to the Offer and not withdrawn (the time and date of acceptance for payment, the “Acceptance Date”).
(b) Purchaser expressly reserves the right, in its sole discretion, to waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer; provided, however, that without the prior written consent of the Company, Purchaser shall not (i) decrease the Offer Price, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) change the form of consideration payable in the Offer (other than by increasing the Offer Price, in the sole discretion of Purchaser), (iv) add to the Tender Offer Conditions, (v) waive or amend the Minimum Condition (as defined in Annex B), (vi) extend or otherwise change the expiration date of the Offer, other than in accordance with Section 1.01(c) or (vii) make any other change in the terms or conditions of the Offer which is or would reasonably be expected to be materially adverse to any holder of Shares, it being agreed that a waiver by Purchaser of any of the conditions set forth in Annex B (other than the Minimum Condition) in whole or in part at any time and from time to time in its discretion shall not be deemed to be materially adverse to any holder of Shares.
(c) The initial expiration date of the Offer (the “Expiration Date”) shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-2 under the Exchange Act). Without the prior written consent of the Company, Purchaser may extend the Expiration Date (which extended date shall thereupon be the Expiration Date for purposes of this Agreement) 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, provided that the Expiration Date shall not be later than the Outside Date as a result of such extension. Without limiting the right of Purchaser to extend the Offer, provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the OfferVIII hereof, (ii1) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), Purchaser shall extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer Date for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer and (2) Purchaser shall extend the Expiration Date if the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B are not satisfied as of any scheduled Expiration Date, until such time as the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B are satisfied, provided that the Expiration Date shall not be later than the Outside Date as a result of such extension. Further, provided that this Agreement shall not have been terminated in accordance with Article VIII hereof, if any of the conditions set forth in Annex B (other than the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B) are not satisfied as of any scheduled Expiration Date, then, except to the extent that such conditions are incapable of being satisfied, at the request of the Company, Purchaser shall extend the Expiration Date for a period requested by the Company of not more than ten (10) Business Days in order to permit the satisfaction of such conditions to the Offer; or (C) provided, however, that Purchaser shall not be required to so extend the Offer for Expiration Date pursuant to this sentence on more than two occasions or if the failure to meet any of such conditions set forth in Annex B was caused by or resulted from the failure of the Company to perform in any material respect any covenant or agreement of the Company contained herein, or the material breach by the Company of any representation or warranty contained herein. In addition, Purchaser shall have the right, without the consent of the Company, to make available a "subsequent offering period" period (as provided by within the meaning of Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of if, on the outstanding shares of the Company Common Stock. On the terms and subject to then-applicable Expiration Date, the conditions to the Offer that are set forth in this AgreementAnnex B have been satisfied or waived but there shall not have been tendered that number of Shares which would equal at least ninety percent (90%) of the issued and then outstanding Shares on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, promptly after the Expiration Datevesting schedule or other terms and conditions thereof). Subject to the terms and conditions set forth in the Offer, either Purchaser shall, and Parent or Merger Sub shall cause it to, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent during such subsequent offering period promptly after any such Shares are tendered during such subsequent offering period and Merger Sub are permitted to accept in any event in compliance with Rule 14d-11 and pay for under applicable law.
(bRule 14e-1(c) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. The Offer may be terminated prior to its Expiration Date (as such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 8.01. In no event shall Purchaser extend the Offer beyond the Outside Date.
(d) On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall (i) file with the SEC, and or cause to be disseminated to filed with the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, Offer which shall contain an the offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the other ancillary documents included therein and instruments required thereby pursuant to which the Offer will be made (including the Registration Statement), together collectively with any supplements or amendments thereto, the "“Offer Documents"”). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect ; (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to ii) cause the Offer Documents as so 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 as required by applicable Law; and (iii) timely file with the Company's stockholders, Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Company Common Stock via the Offer Documents the information set forth in each case as and any such registration statement to the extent and within the time period required by or deemed advisable under applicable federal securities laws. Each Chapter 80B of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after Minnesota Statutes. The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. and Parent and Merger Sub, on the one hand, Purchaser shall give reasonable and the Company on behalf of the CVR Trust, on the other hand, shall provide good faith consideration to any comments made by the Company and its counsel, or .
(e) Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to Purchaser shall cause the Offer Documents promptly after the receipt of such comments and shall consult any amendments or supplements thereto to (i) comply in all material respects with the Company Exchange Act, and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to (ii) not contain any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement 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 covenant is made by Parent with respect to information supplied by the Company specifically for inclusion in the Offer Documents. Parent and Purchaser shall cause the information supplied by Parent and its affiliates specifically for inclusion in the Schedule 14D-9, the Information Statement or the Proxy Statement, at the respective times the Schedule 14D-9, the Information Statement or the Proxy Statement are filed with the SEC or, in the case of the Proxy Statement, at the time of the Special Meeting, 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. Parent and Purchaser shall cause the Offer to be conducted in compliance in all material respects with the Exchange Act.
(f) If at any time prior to the Effective Time, any information relating to the Offer, the Merger, the Company, Parent, Purchaser or any of their respective Affiliates, directors or officers, should be discovered by the Company or Purchaser which should be set forth in an amendment or supplement to the Offer Documents so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that which discovers such information shall promptly notify the other party parties, and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC andand disseminated to the Company Shareholders, as and to the extent required by applicable lawLaw or any applicable rule or regulation of any stock exchange. Parent and Purchaser agree to provide the Company with (i) any comments or other communications, disseminated whether written or oral, that may be received from the SEC or its staff with respect to the stockholders of the CompanyOffer Documents promptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to provide comments on that response (to which reasonable and good faith consideration shall be given).
(cg) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Shares such amounts as Purchaser is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Taxing authority by Purchaser, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect of which such deduction and withholding was made by Purchaser.
(h) Parent shall provide or cause to be provided to Merger Sub on a timely basis Purchaser all of the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 7.1, as promptly as reasonably practicable but (and in no any event later than ten within 10 business days days) after the date of this Agreement, Purchaser shall (and Parent shall cause Purchaser to) commence (within the public announcement meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase for cash all Shares at the Offer Price.
(b) Subject to the terms and conditions of this Agreement, Parent and Merger Sub shall commence including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the latest of (i) the earliest date as of which Purchaser is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer, (ii) the earliest date as of which each of the Offer within Conditions has been satisfied, or waived by Parent or Purchaser, and (iii) the meaning Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms, accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer, and promptly following the acceptance of Shares for payment pursuant to the applicable rules Offer, pay the Offer Price (without interest) for, each Share validly tendered and regulations of not properly withdrawn pursuant to the Securities and Exchange Commission (the "SEC")Offer. The obligations obligation of Purchaser (and of Parent and Merger Sub to cause Purchaser) to accept for payment, and pay the Offer Price (without interest) for, any shares of Company Common Stock each Share validly tendered and not properly withdrawn pursuant to the Offer are is subject to, and only to, the satisfaction, or waiver by Parent or Purchaser, of each of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition (as defined in Annex I) and the other conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub Annex I. Purchaser expressly reserve reserves the right to (x) increase the Offer Price and (y) waive any condition to the Offer or modify Condition and make any other changes in the terms and conditions of the Offer; provided, except thathowever, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub Purchaser shall not (i) reduce decrease the number of shares of Company Common Stock subject to the OfferOffer Price, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, (iii) decrease the maximum number of Shares sought to be purchased in the Offer, (iv) impose conditions or requirements to the Offer in addition to the Offer Conditions or amend or modify any of the Offer Conditions in a manner that adversely affects, or reasonably could adversely affect, the holders of Shares, (vi) change or waive the Minimum Condition, or (vii) extend or otherwise amend change the expiration date of the Offer in any a manner adverse other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in accordance with the holders terms of Company Common Stock. Notwithstanding this Agreement, the foregoing, Merger Sub may Offer shall expire at 5:00 p.m. (but shall not be obligated to), without New York City time) on the consent date that is 21 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 Company Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in its sole accordance with this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and absolute discretionin accordance with this Agreement, is referred to as the “Expiration Date”).
(Ae) The Offer shall be extended from time to time extend the Offer if, at the as follows:
(i) If on or prior to any then scheduled Expiration Date, any the only Offer Conditions that have not been satisfied, or waived by Parent or Purchaser if permitted hereunder, are the Minimum Condition, the HSR Condition (as defined in Annex I), and/or the Trading Suspension Condition (as defined in Annex I), then Purchaser shall (and Parent shall cause Purchaser to), at the request of the conditions Company, extend the Offer for one or more successive periods of not more than 10 business days each in order to permit the satisfaction of such conditions, provided such extension of the Offer period does not extend past the earlier of (x) the termination of this Agreement pursuant to Section 7.1 and (y) the date, as applicable, that is (A) 120 days after commencement of the Offer (the “Initial Outside Date”), or (B) 210 days after commencement of the Offer in the event that the HSR Condition shall not have been satisfied satisfied, or waived until such time as such conditions are satisfied by Parent or Purchaser if permitted hereunder, by the Initial Outside Date (the “Extended Outside Date”);
(ii) Purchaser may, in its sole discretion, extend the Offer for one or more successive periods of not more than 10 business days each, if at any otherwise scheduled Expiration Date any of the Offer Conditions shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, until the termination of this Agreement pursuant to the extent permitted by this AgreementSection 7.1; and
(Biii) Purchaser shall extend the Offer for any period or periods required by any applicable law, rule, regulation, interpretation or position of the SEC applicable Securities and Exchange Commission (“SEC”) or its staff or The NASDAQ Stock Market LLC (the “NASDAQ”) or its staff, until the termination of this Agreement pursuant to the Offer; or Section 7.1.
(Cf) extend the Offer Purchaser may, in its sole discretion, provide for a "one “subsequent offering period" ” (as provided by and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act) . Additionally, in the event that more than 80% of the then outstanding Shares have been validly tendered and not properly withdrawn pursuant to the Offer following the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to), at the request of the Company, provide for a period one “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of three to twenty at least 10 business days immediately following the Expiration Date unless (i) Parent and Purchaser exercise the Top-Up Option or (ii) Parent, Purchaser and their respective Subsidiaries, in order to acquire at least the aggregate, own more than 90% of the outstanding shares Shares. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay the Offer Price (without interest) for, each Share that is validly tendered pursuant to the Offer during such “subsequent offering period” promptly after each such Share is tendered during such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company Common Stock. On except in the terms and subject event that this Agreement is terminated pursuant to Section 7.1.
(h) In the event that this Agreement is terminated pursuant to Section 7.1 prior to the conditions Acceptance Time, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly Offer.
(i) As soon as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to commencement of the Offer (within the "Acceptance Date"), all shares meaning of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) 14d-2 under the Exchange Act. On the date of commencement of the Offer), Parent and Merger Sub Purchaser shall file with the SEC, pursuant to Rule 14d-3 and cause to be disseminated to Regulation M-A under the Company's stockholders, as and to the extent required by applicable federal securities lawsExchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and exchange and will contain or incorporate by reference all or part Purchase, a form of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO advertisement, and the other ancillary documents included therein and instruments pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments and supplements or thereto, and together with the Schedule TO and any amendments and supplements thereto, the "“Offer Documents"”). Each The Company will provide to Parent and Purchaser any information with respect to itself and its officers, directors and Affiliates required to be provided in the Offer Documents under applicable Laws or as reasonably requested by Parent and Purchaser. Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of ParentShares, Merger Sub in each case as and to the extent required by the Exchange Act. Parent and Purchaser, on the one hand, and the Company shall 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 such information it shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), applicable Law. Parent and each of Parent, Merger Sub and the Company shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented corrected (if applicable), to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Exchange Act. Each of the parties hereto The Company and their respective its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger SubPurchaser shall give due consideration to all the reasonable additions, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to deletions or changes suggested thereto by the Company and its counsel. In addition, or Parent and Merger Sub Purchaser shall provide the Company and their counsel, respectively, in writing its counsel with copies of any written comments (comments, and orally, shall inform them of any oral comments), that Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments comments, and any written or oral responses thereto. The Company and its counsel shall consult with be given a reasonable opportunity to review any such written responses before they are submitted to the SEC or its staff, and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel, or . Parent and Merger Sub and their counsel, respectively, prior to responding Purchaser shall respond promptly to any such commentscomments of the SEC or its staff with respect to the Offer Documents. The Company will advise Parent and Merger Sub promptly after it receives notice that hereby consents to the Registration Statement and any supplement or amendment that has been filed have become effective, inclusion in the Offer Documents of the issuance of any stop orderCompany Board Recommendation, as such Company Board Recommendation may be amended and for so long as such Company Board Recommendation is not withdrawn (in each case as permitted by this Agreement). If the Offer is terminated or withdrawn by Purchaser, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time this Agreement is terminated prior to the time purchase of consummation of Shares in the Offer, Purchaser shall promptly return, and shall cause any information relating depository, acting on behalf of Purchaser to return, all tendered Shares to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyregistered holders thereof.
(cj) 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 Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after the date hereof and prior to Purchaser’s acceptance for payment of, and payment for, Shares pursuant to the Offer.
(k) Parent shall provide or cause to be provided to Merger Sub on a timely basis Purchaser all of the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto nothing shall have occurred or be existingthat, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence had the Offer within been commenced, would give rise to a right to terminate the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered Offer pursuant to the Offer are subject to any of the conditions set forth in Exhibit A. The initial expiration Annex I hereto, as promptly as practicable and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the 1▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition subject to the Offer or modify condition that there shall be validly tendered in accordance with the terms of the Offer, except immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, without together with the written consent Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the Companyconditions to the Offer 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, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the OfferMinimum Condition may not be waived, (ii) reduce no change may be made that changes the Offer Price form of consideration to be paid pursuant to the Offer, (iii) change decreases the Offer Price or waive the Minimum Tender Condition (as defined number of Company Shares sought in Exhibit A)the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, add to or amends the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A Annex I in any manner materially adverse to the holders of Company Common StockShares, and (iviii) the Offer may not be extended except as provided below set forth in this Section 1.01(a2.01(a). 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 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the 1▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer (1) if, at the scheduled Expiration Dateor extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the Offer first paragraph of Annex I shall not have been satisfied or waived waived, from time to time, until such time as the earliest to occur of (x) the satisfaction or waiver of such conditions are satisfied or waived to and (y) the extent permitted by this Agreement; End Date, and (B2) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law; or (C) provided that Merger Subsidiary shall not be required to extend the Offer for beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a "subsequent offering period" period (as provided by “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of 1934 Act. Subject to the Company Common Stock. On foregoing, and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub Subsidiary shall accept for payment and purchase, pay for (A) as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer (the "Acceptance Date"), all shares Price payable in respect of each Company Common Stock Share validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted or validly tendered in any Subsequent Offering Period shall be paid net to accept and pay the holder thereof in cash, subject to reduction for under any applicable lawwithholding Taxes.
(b) As promptly soon as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer to purchase and exchange and will contain include as exhibits or incorporate incorporated by reference all or part thereto, the Offer to Purchase and forms of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made (including the Registration Statement)collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”), and (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 Sub Subsidiary and the Company shall 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 originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), respect. Parent and each of Parent, Merger Sub and the Company shall Subsidiary agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Company Shares, in each case as and to the extent required by or deemed advisable under applicable U.S. federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger Sub, on the one hand, Subsidiary shall give reasonable and the Company on behalf of the CVR Trust, on the other hand, shall provide good faith consideration to any comments made by the Company and its counsel, or . Parent and Merger Sub Subsidiary shall provide the Company and their counselits counsel with (A) any comments or other communications, respectivelywhether written or oral, in writing any written comments (and orally, any oral comments), that Parent, Merger Sub Subsidiary or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of such those comments or other communications, and shall consult with (B) a reasonable opportunity to participate in the Company and its counsel, or response of Parent and Merger Sub Subsidiary to those comments and their counselto provide comments on that response (to which reasonable and good faith consideration shall be given), respectively, prior to responding to any such comments. The Company will advise including by participating with Parent and Merger Sub promptly after it receives notice that the Registration Statement and Subsidiary or their counsel in any supplement discussions or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection meetings with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanySEC.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Packeteer Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none X, (ii) all of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration clauses 2(a), (b), (c), (d), (e), (f), (i), (j) and (k) of Annex I shall then be satisfied (in the case of clause 2(f), with respect to covenants and obligations that the Company is required to comply with or to perform prior to such time) or waived by Parent or 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 ten Business Days of the date of this Agreement), Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent and Acquisition Sub of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), as soon as practicable after the Expiration Date, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be the 25th business day following the commencement made by means of the Offer an offer to purchase (the initial "Expiration Date," “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and any expiration time and date established pursuant to an authorized extension of the other Offer as so extended, shall also be defined herein as an "Expiration Date")Conditions. Parent and Merger Acquisition Sub expressly reserve the right to (i) increase the Offer Price, (ii) waive any condition to Offer Condition other than the Offer or modify Minimum Condition and (iii) make any other changes in the terms and conditions of the Offer; provided, except thathowever, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Parent and Acquisition Sub shall not (iA) reduce decrease the number of shares of Company Common Stock subject to the OfferOffer Price, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vB) change the form of consideration payable in the Offer or Offer, (viC) otherwise amend decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer in any manner adverse addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in a manner that adversely affects holders of Company Common StockShares 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. Notwithstanding the foregoing, Merger Sub The Offer may (but shall not be obligated to)terminated prior to the Expiration Date, without unless this Agreement is terminated in accordance with Article X.
(d) Unless extended pursuant to and in accordance with the consent terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (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 Company Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in its sole accordance with this Agreement, the date and absolute discretiontime 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”).
(Ae) The Offer shall be extended from time to time extend the Offer if, at as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the conditions of the other Offer shall Conditions have not have been satisfied satisfied, or waived until such time as such conditions are satisfied or waived to the extent by Parent and Acquisition Sub if permitted by this Agreement; (B) hereunder, then Acquisition Sub shall extend the Offer for one or more periods of not more than 20 Business Days each (the length of such periods to be determined by Parent) or such other number of Business Days as the parties may agree (subject to the right of 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 Article X of this Agreement); and
(ii) Acquisition Sub shall extend, and Parent shall cause Acquisition Sub to extend, the Offer for the minimum period required by any rule, regulationApplicable Law, interpretation or position of the SEC applicable to or its staff or NASDAQ or its staff.
(f) Without limiting the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period other provisions of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after if at any time during the Expiration Dateperiod between the date of this Agreement and the time when Acquisition Sub accepts, either Parent or Merger Sub shall accept for the first time, for payment Shares validly tendered and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment not properly withdrawn pursuant to the Offer (the "“Offer Acceptance Date"Time”), all any change in the outstanding shares of capital stock of the Company Common Stock validly tendered shall occur by reason of any reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, or any stock dividend thereon with a record date during such period, the Offer 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 event that this Agreement is terminated pursuant to the terms hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, shall not withdrawn acquire any Shares pursuant to the Offer that Parent and Merger shall cause any depositary acting on behalf of Acquisition Sub are permitted to accept and pay for under applicable lawreturn, in accordance with Applicable Law, all tendered Shares to the registered holders thereof.
(bh) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Acquisition Sub shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall contain an offer to purchase and exchange and the “Schedule TO”) that will contain or incorporate by reference all or part the Offer to Purchase and form of the Registration Statement and a related letter of transmittal and summary advertisement (such ii) cause the Offer to Purchase and related documents to be disseminated to holders of Shares. Parent and Acquisition Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "“Offer Documents")”) filed by either Parent or Acquisition Sub with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other Applicable Law. Each of Parent, Merger Acquisition Sub and the Company shall agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall take Parent further agrees to use all steps necessary reasonable efforts to amend or supplement the Offer Documents and to promptly cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to promptly be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by Applicable Law. The Company shall promptly furnish or deemed advisable under applicable federal securities laws. Each otherwise make available to Parent and Acquisition Sub or Parent’s legal counsel all information concerning the Acquired Companies and the Company’s 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 parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after Shares. The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination and Parent and Acquisition Sub agree to the stockholders of the Companyconsider in good faith any such comments. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Acquisition Sub agree to provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel with any written comments (and orally, any oral comments), Parent, Merger Acquisition Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or comments. Each of Parent and Merger Acquisition Sub and their counsel, respectively, prior to responding shall respond promptly to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, comments of the issuance of any stop order, SEC or of the suspension of the qualification of the CVR Certificates issuable in connection its staff with respect to the Offer for offering Documents or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(ci) Parent shall provide or cause to be provided to Merger Acquisition Sub on a timely basis all of the funds necessary to purchase any shares of Company Common Stock Shares that Merger Acquisition Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided 2.1.1 Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto nothing shall have occurred or be existingthat, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence had the Offer within been commenced, would give rise to the meaning of right to terminate the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered Offer pursuant to the Offer are subject to any of the conditions set forth in Exhibit A. Annex I, as promptly as practicable after the date hereof (and in any event no later than seven Business Days after the date hereof), Merger Sub shall, and Purchaser shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition subject to the Offer or modify condition that there shall be validly tendered in accordance with the terms of the Offer, except that, without prior to the written consent scheduled expiration of the CompanyOffer (as it may be extended hereunder) and not withdrawn, Merger Sub shall not (i) reduce the a number of shares of Company Enpath Common Stock subject that, together with the shares of Enpath Common Stock then directly or indirectly owned by Purchaser, represents at least a majority of all Enpath Common Stock then outstanding on a fully-diluted basis (the "Minimum Condition") and to the other conditions set forth in Annex I, Merger Sub expressly reserves the right to waive any of the conditions to the Offer and to make any change in the terms of or conditions to the Offer, ; provided that unless otherwise provided by this Agreement or previously approved by Enpath in writing,
(iiA) reduce the Offer Price Minimum Condition may not be waived,
(B) no change may be made that changes the form of consideration to be paid pursuant to the Offer, (iii) change decreases the Offer Price or waive the Minimum Tender Condition (as defined number of shares of Enpath Common Stock sought in Exhibit A)the Offer, add imposes conditions to the conditions Offer in addition to those set forth in Exhibit A Annex I, or modify any condition set forth in Exhibit A otherwise amends or modifies the Offer in any manner materially adverse to the holders of Company Enpath Common Stock, and
(ivC) the Offer may not be extended except as provided below set forth in this Section 1.01(a)2.1.
1. Subject to the terms and conditions of this Agreement, extend the Offer, (v) change the form of consideration payable in the Offer or shall expire at midnight, New York City time, on the date that is 20 Business Days (vifor this purpose calculated in accordance with Section 14d-1(g)(3) otherwise amend under the Exchange Act) after the date that the Offer in any manner adverse to the holders of Company Common Stockis commenced. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer for successive periods of up to twenty (20) Business Days each:
(i) if, at the scheduled Expiration Dateor extended expiration date of the Offer, any of the conditions of to the Offer shall not have been satisfied or waived waived, from time to time, until the earliest to occur of:
(a) the satisfaction or waiver of such time as conditions,
(b) the reasonable determination by Purchaser that any such conditions are satisfied or waived condition to the extent permitted Offer is not capable of being satisfied on or prior to the End Date, provided that the inability to satisfy such condition does not result from any breach of any provision of this Agreement by this Agreement; Purchaser or Merger Sub, and
(Bc) extend the Offer End Date, and
(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 set forth by any applicable Legal Requirement. Following expiration of the Offer; , Merger Sub may, in its sole discretion, provide one or more subsequent offering periods (C) extend the Offer for each, a "subsequent offering period" (as provided by Subsequent Offering Period") in accordance with Rule 14d-11 under of the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , if, as of the outstanding 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 shares of Enpath Common Stock necessary to permit the Company Common StockMerger to be effected without a meeting of shareholders of Enpath, in accordance with Section 302A.621 of the Minnesota Business Corporation Act ("MBCA"). On Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall, and Purchaser shall cause Merger Sub to, accept for payment and purchasepay for, as promptly as practicable after the date on which Parent or Merger Sub practicable, all shares of Enpath Common Stock that were either:
(as the case may beA) first accepts shares for payment validly tendered and not withdrawn pursuant to the Offer after the final expiration of the Offer, or
(the "Acceptance Date"), all shares B) validly tendered in any Subsequent Offering Period. The Offer Price payable in respect of Company each share of Enpath Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted or validly tendered in any Subsequent Offering Period shall be paid net to accept and pay the holder thereof in cash, subject to reduction for under any applicable lawwithholding Taxes.
(b) 2.1.2 As promptly soon as reasonably practicable but in no event later than ten business days after on the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent Purchaser and Merger Sub shall shall:
(A) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the "Schedule TO") that shall contain an offer to purchase and exchange and will contain include the summary term sheet required thereby and, as exhibits or incorporate incorporated by reference all or part thereto, the Offer to Purchase and forms of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which of advertisement, if any, in respect of the Offer will be made (including the Registration Statement)collectively, together with any amendments or supplements or amendments thereto, the "Offer Documents").
(B) cause the Offer Documents to be disseminated to the holders of Enpath Common Stock. Enpath shall promptly furnish to Purchaser and Merger Sub in writing all information concerning Enpath that may be required by applicable securities laws or reasonably requested by Purchaser or Merger Sub for inclusion in the Schedule TO or the Offer Documents.
(C) Parent and Merger shall timely file with the Commissioner of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Enpath Common Stock via the Offer Documents the information set forth in any such registration statement to the extent and within the time period required by Chapter 80B of the Minnesota Statutes. Each of ParentPurchaser, Merger Sub and the Company shall Enpath agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), respect. Purchaser and each of Parent, Merger Sub and the Company shall agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Enpath Common Stock, in each case as and to the extent required by or deemed advisable under applicable U.S. federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after Enpath and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination to the stockholders of the Company. Parent SEC, and Purchaser and Merger Sub, on the one hand, Sub shall give reasonable and the Company on behalf of the CVR Trust, on the other hand, shall provide good faith consideration to the Company any comments made by Enpath and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Greatbatch, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs paragraph (a) through (e) or (hb) of Exhibit A hereto Annex I shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable but (and in no any event later than ten within five business days days) after the date of the public announcement of this Agreement, Purchaser shall (and Parent and Merger Sub shall cause Purchaser to) commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 promulgated under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”). The obligations ), the Offer to purchase for cash all outstanding Shares at the Offer Price.
(b) Promptly after the latest of Parent and Merger Sub (i) the earliest date as of which Purchaser is permitted under applicable law to accept for payment, payment Shares validly tendered and pay for, any shares of Company Common Stock tendered not withdrawn pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the earliest date as of which each of the conditions and requirements set forth in Annex I (the “Offer Conditions”) has been satisfied or waived by Parent or Purchaser, and (iii) the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer Price to be paid in accordance with its terms and accept for payment and pay for all Shares (without interest) validly tendered and not withdrawn pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add . The obligation of Purchaser to accept for payment and pay for Shares tendered and not withdrawn pursuant to the conditions Offer shall be subject only to the satisfaction, or waiver by Parent or Purchaser, of each of the Offer Conditions (and shall not be subject to any other conditions).
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains, among other things, the terms set forth in Exhibit A or modify any condition this Agreement, the Minimum Condition and the other conditions and requirements set forth in Exhibit A in Annex I. Parent and Purchaser expressly reserve the right to (x) increase the Offer Price and (y) waive any manner adverse Offer Conditions and make any other changes to the holders terms and conditions of Company Common Stockthe Offer; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company, neither Parent nor Purchaser shall (i) decrease the Offer Price, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vii) change the form of consideration payable in the Offer, (iii) decrease the number of Shares sought to be purchased in the Offer, (iv) impose conditions or requirements to the Offer that are different than or in addition to the Offer Conditions, (v) change or waive the Minimum Condition, (vi) otherwise amend or modify any of the Offer Conditions in any a manner adverse to that adversely affects, or reasonably could adversely affect, the holders of Company Common Stock. Notwithstanding Shares, or (vii) extend or otherwise change the foregoing, Merger Sub may (but shall not be obligated to), without the consent expiration date of the Company Offer other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in its sole accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 business days following the commencement (within the meaning of Rule 14d-2 promulgated 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 absolute discretionin accordance with the terms of this Agreement, the date to which the Offer has been so extended (Athe Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with the terms of this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time extend the Offer if, at the as follows:
(i) If on or prior to any then scheduled Expiration Date, any of the conditions Date all of the Offer Conditions (including the Minimum Condition) shall not have been satisfied or waived by Parent or Purchaser (if permitted hereunder), then Purchaser shall (and Parent shall cause Purchaser to) extend the Offer for one or more successive periods of not more than 10 business days each in order to permit the satisfaction of such conditions, each until such time as such conditions are satisfied or waived the earlier of (x) the termination of this Agreement pursuant to Section 8.1 and (y) the extent permitted by this Agreementdate that is 90 days after commencement of the Offer (the “Outside Date”); and
(Bii) Purchaser shall extend the Offer for any period or periods required by any then applicable law, rule, regulation, interpretation or position of the SEC applicable Securities and Exchange Commission (the “SEC”) or its staff or NASDAQ or its staff.
(f) If necessary to obtain sufficient Shares to reach the Offer; or (C) extend the Offer Short-Form Threshold, Purchaser may, in its sole discretion, provide for a "subsequent offering period" (as provided by period in accordance with Rule 14d-11 promulgated under the Exchange Act) for a period of three to twenty business days . Notwithstanding the foregoing, in order to acquire at least 90the event that more than 80% of the then outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares have been validly tendered and not withdrawn pursuant to the Offer that following the Expiration Date, Purchaser shall (and Parent and Merger Sub are permitted to accept and pay shall cause Purchaser to) provide for a subsequent offering period in accordance with Rule 14d-11 promulgated under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten the Exchange Act of at least 10 business days after immediately following the date Expiration Date; provided, that Purchaser shall not be required to make available such a subsequent offering period in the event that, prior to the commencement of the public announcement of this Agreementsuch subsequent offering period, the Company shall cause the CVR Trust Parent, Purchaser and their respective related organizations (as defined in Section 5.16 302A.011, Subd. 25, of the MBCA), in the aggregate, own more than 90% of the outstanding Shares. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (a)and Parent shall cause Purchaser to) accept for payment, and pay for, all Shares that are validly tendered and not withdrawn pursuant to file the Offer during such subsequent offering period promptly after any such Shares are tendered during such subsequent offering period. The Offer Documents will provide for the possibility of a subsequent offering period in a manner consistent with the SEC under terms of this Section 1.1(f).
(g) Purchaser shall not terminate the Securities Act Offer prior to any scheduled Expiration Date without the prior written consent of 1933the Company, as amended except in the event that this Agreement is terminated pursuant to Section 8.1. In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and together with the rules Parent shall cause Purchaser to) promptly (and regulations promulgated thereunder (the "Securities Act"in any event within 24 hours of such termination), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (irrevocably and unconditionally terminate the "Registration Statement") to register the offer Offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") shall not acquire any Shares pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing .
(h) On the information required under date of the commencement of the Offer (within the meaning of Rule 14d-4(b) 14d-2 promulgated under the Exchange Act. On the date of commencement of the Offer), Purchaser shall (and Parent and Merger Sub shall cause Purchaser to) file with the SEC, and cause pursuant to be disseminated to Regulation M-A under the Company's stockholders, as and to the extent required by applicable federal securities lawsExchange Act (“Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include, as exhibits, the Offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement Purchase and a related form of letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to holders of the Shares, in each case as and to the extent required by the Exchange Act. Each of Parent, Merger Sub Purchaser and the Company shall agrees to correct promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), applicable law. Parent and each of Parent, Merger Sub and the Company shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented corrected (if applicable), to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Exchange Act. Each of the parties hereto The Company and their respective its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger SubPurchaser shall give due consideration to all reasonable additions, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to deletions or changes suggested thereto by the Company and its counsel, or . Parent and Merger Sub Purchaser agree to use all reasonable best efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents. In addition, Parent and their counsel, respectively, in writing Purchaser shall provide the Company and its counsel with copies of any written comments (comments, and orally, shall inform them of any oral comments), that Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such comments comments, and any written or oral responses thereto. Parent and Purchaser shall give the Company and its counsel a reasonable opportunity to review any such written responses and shall consult with give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. If Purchaser terminates or withdraws the Offer, or Parent and Merger Sub and their counsel, respectively, this Agreement is terminated prior to responding the purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to any such commentsreturn, all tendered Shares to the registered holders thereof.
(i) Purchaser shall (and Parent shall cause Purchaser to) timely file with the Commissioner of Commerce of the State of Minnesota a registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate the registration statement as required by Chapter 80B of the Minnesota Statutes. The Company will advise and Purchaser shall (and Parent and Merger Sub shall cause Purchaser to) promptly after it receives notice that file with the Registration Statement and any supplement or amendment that has been filed have become effective, Commissioner of Commerce of the issuance State of Minnesota all materials referred to in Section 80B.04 of the Minnesota Statutes.
(j) The Offer Price shall be adjusted appropriately to reflect the effect of any stop orderstock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination or other like change with respect to Common Stock occurring on or after the suspension date of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time this Agreement and prior to the time of consummation of the OfferAcceptance Time, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyif any.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Buca Inc /Mn)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable but practicable, and, in no event later than ten any event, within seven business days after of the date of hereof, the public announcement of this Agreement, Parent and Merger Sub Purchaser shall commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”)) the Offer to purchase for cash all Shares at the Offer Price. The obligations of Parent and Merger Sub the Purchaser to accept for paymentpayment and to pay for any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares which represents at least a majority of the Shares outstanding on a fully-diluted basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. Subject to the prior satisfaction of the Minimum Condition and subject to the prior satisfaction or waiver by Parent or the Purchaser of the other conditions of the Offer set forth in Annex I hereto (it being understood that the Minimum Condition cannot be waived or modified without the consent of the Company), the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, any shares of Company Common Stock for all Shares validly tendered and not withdrawn pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial promptly after expiration date of the Offer Offer, which shall initially be the 25th 20th business day following the commencement of the Offer Offer, provided, however, that (w) if on the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive or on any condition to subsequent scheduled expiration date of the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined extended in Exhibit Aaccordance with this Agreement), add all conditions to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived waived, the Purchaser may, from time to time, in its sole discretion, extend the Offer for such period as the Purchaser may determine until such time as such conditions are satisfied waived or waived satisfied; provided, however, that, if, as of any scheduled expiration date of the Offer, (A) any of the events set forth in clauses (a), (b) or (c) of Annex I shall have occurred and be continuing (and the condition in Annex I with respect to the extent permitted applicable clause shall not have been waived by the Purchaser) then, subject to the right of Parent and the Purchaser to terminate this Agreement; agreement in accordance with its terms, the Purchaser shall be required to extend the Offer unless such conditions could not reasonably be expected to be waived or satisfied by the Outside Date or (B) any of the events set forth in clause (f) of Annex I (but only with respect to unintentional failures of such representations and warranties to be true and correct) or clause (g) of Annex I (but only with respect to non-willful breaches of, or failures to comply with, covenants and agreements) shall have occurred and be continuing (and the condition in Annex I with respect to the applicable clause shall not have been waived by the Purchaser), then, subject to the right of Parent and the Purchaser to terminate this agreement in accordance with its terms, the Purchaser shall be required to extend the offer to a date that is not less than 30 days after Purchaser notified the Company of such event, (x) the Purchaser may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; or , (Cy) if on the then scheduled expiration date of the Offer there shall have been validly tendered and not withdrawn at least 80% but less than 90% of the Shares outstanding on a fully diluted basis, the Purchaser may, in its sole discretion, extend the Offer for an additional period of not more than 10 business days, and (z) the Purchaser may, in its sole discretion, provide a "“subsequent offering period" (as provided by ” in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of . In addition, the outstanding shares of Purchaser may increase the Company Common Stock. On Offer Price and extend the terms and subject Offer to the conditions extent required by law in connection with such increase, in each case in its sole discretion and without the Company’s consent; provided, however, that neither Parent nor Purchaser shall otherwise modify the Offer in any manner adverse to the Offer that are set forth holders of Shares without the Company’s consent, except as specifically permitted in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly soon as reasonably practicable but in no event later than ten business days after on the date of the public announcement of this AgreementOffer is commenced, Parent and the Company Purchaser shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an include the offer to purchase and exchange and will contain or incorporate by reference all or part forms of the Registration Statement and a related letter of transmittal and summary advertisement all other ancillary Offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments and supplements or amendments thereto, the "“Offer Documents"”). Each of Parent, Merger Sub Parent and the Company Purchaser shall cause the Offer Documents to be filed with the SEC and disseminated to holders of Shares as required by applicable federal securities laws. Parent and the 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 such information it shall have originally been or shall become false or misleading in any material respect (whether or as otherwise required by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub law. Parent and the Company shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case holders of Shares as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing before they are filed with the SEC or dissemination disseminated to the stockholders holders of the CompanyShares. In addition, Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Purchaser agree to provide to the Company and its counsel, counsel with any comments or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), communications that Parent, Merger Sub the Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after Parent’s or the Purchaser’s, as the case may be, receipt of such comments and shall consult with the Company and its counselcomments, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement written or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyoral responses thereto.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Dmi Furniture Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have --------- been terminated in accordance with its terms pursuant to Article VII hereof and none of the events conditions set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existingcontinuing, Parent shall cause ------- Merger Sub to, and Merger Sub shall, commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten business days five (5) Business Days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC")hereof. The obligations obligation of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock payment Shares tendered pursuant to the Offer are 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, shall constitute a majority of the then outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any outstanding convertible securities or upon the exercise of any outstanding options or warrants which are vested as of the date hereof or are capable of vesting during the ninety (90) day period following the consummation of the Offer and have an exercise price of $10.00 per Share or less) shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition") and (ii) there ----------------- shall not have occurred or be continuing any of the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Annex A hereto. Parent and Merger Sub expressly reserve reserves the right to waive any condition such condition, ------- to increase the Offer or modify Per Share Amount, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, that no change may be made by Parent without the prior written consent of the Company, Merger Sub shall not Company which (iA) reduce decreases the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change Per Share Amount or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change changes the form of consideration payable in the Offer, (B) waives the Minimum Condition, (C) reduces the maximum number of Shares to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth in Annex A hereto or (viE) otherwise amend amends any term of the Offer in any other ------- manner materially adverse to the holders of Company Common Stockthe Shares. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)may, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer beyond the scheduled expiration date, which shall be twenty (20) Business Days following the commencement of the Offer, if, at the scheduled Expiration Dateexpiration of the Offer, any of the conditions of the Offer to Merger Sub's obligation to accept for payment Shares shall not have been be satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the "SEC"), --- or the staff thereof, applicable to the Offer; , or (Ciii) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a an aggregate period of three to twenty business days in order to acquire at least 90% not more than ten (10) Business Days beyond the latest applicable date that would otherwise be permitted under clause (i) or (ii) of the outstanding shares this sentence, if, as of the Company Common Stock. On the terms and subject to such date, all of the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall Sub's obligations to accept for payment and purchaseShares are satisfied or waived, as promptly as practicable after but the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares number of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that totals less than ninety percent (90%) of the issued and outstanding Shares on a fully diluted basis. The Per Share Amount shall, subject to any applicable withholding of Taxes, be 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 are permitted to shall, accept for payment and pay for under applicable law.
(b) As all Shares validly tendered and not withdrawn as promptly as reasonably practicable but in no event later than ten business days after the date following satisfaction of the public announcement Minimum Condition. Notwithstanding the immediately preceding sentence and subject to the applicable rules of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under and the Securities Act of 1933, as amended terms and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement 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 shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (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 file with the SECshall, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall terminate promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and (ii) none of the events or conditions set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existingexisting and not have been waived, as promptly as reasonably practicable (but in no any event not later than ten five (5) business days after the date of the public announcement of the execution and delivery of this Agreement), Parent and Merger Sub Purchaser shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer whereby Purchaser will offer to purchase for cash all of the Securities Shares at the Per Share Amount (subject to reduction for any stock transfer taxes payable by the holders of such Shares, 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(c) under the Exchange Act, in which case references herein to Purchaser will be deemed to apply to such Subsidiary, as applicable). Purchaser shall keep, and Exchange Commission Parent shall cause Purchaser to keep, the Offer open for a period of at least twenty (20) business days after the commencement of the Offer (such period, the “First Offer Period”). In the event that the Minimum Condition has not been satisfied pursuant to the Offer during the First Offer Period, Purchaser shall keep, and Parent shall cause Purchaser to keep, the Offer open for a period of at least ten (10) business days after the expiration of the First Offer Period (such period, the “Second Offer Period” and together with the First Offer Period, the “Offer Period”). In the event that, immediately prior to the Expiration Date, the Minimum Condition has not been met, the Company shall have the right to require Purchaser to extend the Expiration Date for an additional period not to exceed twenty (20) business days.
(b) The obligation of Parent to cause Purchaser to consummate the Offer and to accept for payment and to pay for Shares validly tendered in the Offer and not validly withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in Annex A hereto (the "SEC"“Offer Conditions”). The obligations Subject to the prior satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent and Merger Sub to shall cause Purchaser to, accept for payment, and pay for, any shares in accordance with the terms of Company Common Stock the Offer, all Shares validly tendered and not withdrawn pursuant to the Offer are subject as soon as practicable after the expiration of the First Offer Period or the Second Offer Period (as applicable), including any extensions thereof pursuant to this Agreement (the conditions set forth in Exhibit A. The initial expiration “Expiration Date”). Notwithstanding the foregoing, if between the date of this Agreement and the Offer Completion Date 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 the 25th business day following the commencement correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of the Offer shares.
(the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub c) Purchaser expressly reserve reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall Purchaser will not, and Parent will cause Purchaser not to, (i) reduce decrease or change the number form of shares of Company Common Stock subject to the OfferPer Share Amount, (ii) reduce decrease the Offer Price to be paid pursuant to number of Shares sought in the Offer, (iii) change amend or waive the Minimum Tender Condition (as defined in Exhibit A)Condition, add to or impose conditions other than the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to Offer Conditions on the holders of Company Common StockOffer, (iv) extend the Expiration Date, except (A) as provided below required by Law and (B) that, in this Section 1.01(a)the event that any Offer Condition is not satisfied or waived at the time that the Expiration Date would otherwise occur, Purchaser may, in its sole discretion, extend the OfferExpiration Date for such period as it may determine to be appropriate (but not beyond the Outside Date), or (v) change the form amend any term of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner materially adverse to the holders Shareholders (including without limitation amendments resulting in any extension which would be inconsistent with the preceding provisions of Company Common Stock. Notwithstanding the foregoingthis sentence); provided, Merger Sub may (but shall not be obligated to)however, that Purchaser may, without the consent of the Company and in its sole and absolute discretion, (A) from time subject to time extend applicable legal requirements, waive any Offer Condition, other than the Offer ifMinimum Condition, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; or (C) extend the Offer in order to provide sufficient time (but not beyond the Outside Date) to 369958_13 respond to any matter hereafter arising and required to be disclosed to Parent pursuant to Section 5.3(c)(i) and (ii); and (D) extend the Offer after the acceptance of Shares thereunder for a "further period of time by means of a subsequent offering period" (as provided by period under Rule 14d-11 promulgated under the Exchange ActAct of not more than twenty (20) for a period of three to twenty business days to meet the objective (which is not a condition to the Offer) that there be validly tendered, in order accordance with the terms of the Offer, prior to acquire the expiration date of the Offer (as so extended) and not withdrawn a number of Shares which, together with Shares owned by Parent and Purchaser, represents at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawShares.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall has not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing8, as promptly as reasonably practicable after the date of this Agreement, but in no event later more than ten business days (10) Business Days after the date of the public announcement of this Agreement, Purchaser will (and Parent and Merger Sub shall will cause Purchaser to) commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer.
(b) Upon the terms and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), Purchaser will (and Parent will cause Purchaser to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment and promptly thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer.
(c) The initial expiration date Offer will be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify not inconsistent with the terms of the Offerthis Agreement; provided, except thathowever, that unless otherwise provided by this Agreement, without the prior written consent of the CompanyCompany (which the Company may withhold in its sole discretion), Merger Sub shall Purchaser will not (iA) reduce decrease the number of shares of Company Common Stock subject to the OfferOffer Price, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vB) change the form of consideration payable in the Offer or Offer, (viC) otherwise amend decrease the maximum number of Shares subject to the Offer, (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend or modify any of the Offer Conditions in any manner adverse to the that adversely affects holders of Company Common StockShares, (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. Notwithstanding Parent and Purchaser may waive the foregoing, Merger Sub may (but shall not be obligated to), without Minimum Condition only with the prior written consent of the Company Company, which may be granted or withheld in the Company’s sole discretion. The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with Article 8.
(d) Unless extended pursuant to and in its sole accordance with the terms of this Agreement, the Offer will expire at 11:59:59 (New York City time) on the date that is twenty (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 absolute discretionin accordance with this Agreement, the date and time to which the Offer has been so extended (Asuch 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) Purchaser will, and Parent will cause Purchaser to, extend the Offer from time to time extend as follows: (i) if on the Offer if, at the scheduled applicable Expiration Date, any of the conditions of Offer Conditions (including the Offer shall Minimum Condition) have not have been satisfied or waived until such time as such conditions are satisfied or waived or, to the extent permitted waivable by Parent or Purchaser pursuant to this Agreement; (B) , waived by Parent or Purchaser, then Purchaser will extend the Offer for any successive periods of not more than ten (10) Business Days each (as determined by Purchaser), or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) Purchaser will extend the Offer for the minimum period required by any rule, regulationapplicable Legal Requirements, interpretation or position of the SEC applicable to or its staff or NASDAQ or its staff. Nothing in this Section 1.1(e) will (A) require Purchaser to, and without the Offer; or (C) Company’s prior written consent Purchaser will not be permitted to, extend the Offer for a "subsequent offering period" beyond the End Date, or (as provided by Rule 14d-11 under B) be deemed to impair, limit or otherwise restrict in any manner the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% right of the outstanding shares parties to terminate this Agreement pursuant to the terms of Section 8.1. Neither Parent nor Purchaser will extend the Offer in any manner other than pursuant to and in accordance with the provisions of this Section 1.1(e) without the prior written consent of the Company.
(f) The Offer Price will be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock. On ), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the terms date hereof and subject to the conditions at or prior to the Offer that are set forth in this AgreementAcceptance Time, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant such adjustment to the Offer (Price will provide to the "Acceptance Date"), all shares holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) will 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 Purchaser will terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly tendered and not withdrawn terminated in accordance with the terms hereof. If this Agreement is terminated pursuant to the Offer that terms hereof, then Purchaser will (and Parent will cause Purchaser to) promptly (and Merger Sub are permitted in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer, will not acquire any Shares pursuant to accept the Offer, and pay for under will cause any depository acting on behalf of Purchaser to return, in accordance with applicable lawLegal Requirements, all tendered Shares to the registered holders thereof.
(bh) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall Purchaser will (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall contain an offer to purchase and exchange and the “Schedule TO”) that will contain or incorporate by reference all or part (A) the Offer to Purchase and form of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO advertisement, if any, and the any other ancillary Offer documents included therein and instruments pursuant to which the Offer will be made made, and (including B) a notice to the Registration Statement)Company’s stockholders informing such stockholders of their rights of appraisal in respect of such Shares in accordance with Section 262 of the DGCL, together with any and (ii) cause the Offer to Purchase and related documents to be disseminated to all holders of Shares. Parent and Purchaser agree that they will cause the Schedule TO and all exhibits, amendments or supplements or amendments theretothereto (collectively, the "“Offer Documents")”) filed by either Parent or Purchaser with the SEC to comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Legal Requirements. Each of Parent, Merger Sub Purchaser and the Company shall will promptly correct any information provided by it or any of its Representatives for use in the Offer Documents if and to the extent that such information shall will have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and to supplement the Company shall take all steps necessary to amend or supplement information contained in the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, include any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact will become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent further will use all reasonable efforts to promptly cause the party that discovers such information shall promptly notify the other party and an appropriate amendment Offer Documents as so corrected or supplement describing such information shall supplemented to be promptly filed with the SEC andand to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable law, disseminated Legal Requirements. The Company will promptly furnish or otherwise make available in writing to Parent and Purchaser or Parent’s legal counsel all information concerning the Acquired Companies and the Company’s stockholders that is required or is reasonably requested by Parent to be included in the Offer Documents. The Company and its counsel will be given reasonable opportunity to review and comment on the Offer Documents prior to the stockholders filing thereof with the SEC. Parent and Purchaser agree to provide the Company and its counsel with any comments Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Each of Parent and Purchaser will respond promptly to any comments of the CompanySEC or its staff with respect to the Offer Documents or the Offer.
(ci) Parent shall provide or will cause to be provided to Merger Sub Purchaser on a timely basis all of the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer, and will cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Anadigics Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingVIII, as promptly as reasonably practicable after the date of this Agreement but in no event later than ten business days after the date of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to (and the public announcement Company shall cooperate with Parent and Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer.
(b) Subject to the terms and conditions of this Agreement, Parent and including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), Merger Sub shall commence (and Parent shall cause Merger Sub to) consummate the Offer within in accordance with its terms and accept for payment each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the meaning Offer (the time and date of acceptance for payment, the “Acceptance Time”) and promptly following the acceptance of the applicable rules shares of Company Common Stock for payment pursuant to the Offer, pay (subject to any withholding of Tax pursuant to Section 1.01(i) or Section 2.02(g)) the Offer Price net to the seller in cash, without interest, for each share of Company Common Stock validly tendered and regulations of not properly withdrawn pursuant to the Securities and Exchange Commission (the "SEC")Offer. The obligations obligation of Parent and Merger Sub to (and of Parent to cause Merger Sub to) accept for payment, and pay the Offer Price net to the seller in cash, without interest, for, any shares each share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer are shall be subject only to the satisfaction, or waiver by Parent or Merger Sub if permitted hereunder, of each of the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms and conditions of the Offer as set forth in this Agreement, including the Minimum Tender Condition (as defined in Annex I) and the other conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Annex I. Parent and Merger Sub expressly reserve the right (in their sole discretion) to waive any condition to (i) increase the Offer Price, (ii) waive, in whole or modify in part, any Offer Condition and (iii) make any other changes in the terms and conditions of the Offer; provided that, except thatunless otherwise provided by Section 1.01(k), without the prior written consent of the Company, Parent and Merger Sub shall not (iA) reduce decrease the number of shares of Company Common Stock subject to the OfferOffer Price, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (vB) change the form of consideration payable in the Offer Offer, (C) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose additional conditions on the consummation of the Offer, (E) amend or (vi) otherwise amend modify any of the Offer Conditions in a manner that adversely affects any manner adverse to the holders holder of shares of Company Common Stock. Notwithstanding , (F) change or waive the foregoingMinimum Tender Condition, Merger Sub may (but G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.01(e) of this Agreement or (H) otherwise amend or modify the Offer in a manner that adversely affects any holder of shares of Company Common Stock.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall not be obligated to)expire at midnight, without New York time, on the consent 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 of the Company Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in its sole accordance with this Agreement, the date and absolute discretiontime 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, the “Expiration Date”).
(Ae) The Offer shall be extended from time to time extend the Offer if, at the as follows:
(i) If on or prior to any then scheduled Expiration Date, any of the Offer Conditions shall not have been satisfied (other than conditions which by their nature are to be satisfied at the Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for one or more successive periods of up to 10 business days each in order to permit the satisfaction of such conditions (subject to the right of Parent and Merger Sub to waive any condition (other than the Minimum Tender Condition) in accordance with this Agreement); provided that, such extension of the Offer does not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) December 31, 2012 (the “Outside Date”);
(ii) If, within five business days prior to any then scheduled Expiration Date, the Company receives a Company Competing Proposal (or a revision to a previously received Company Competing Proposal), then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer so that the Expiration Date does not occur until the later of (x) the date that is 5 business days following the date of the Company’s initial receipt of such Acquisition Proposal (or such revision to a previously received Acquisition Proposal) and (y) the first business day following the expiration of the applicable Notice Period related to such Acquisition Proposal (or such revision to a previously received Acquisition Proposal); provided, that such extension of the Offer shall not have been satisfied or waived until extend past the termination of this Agreement pursuant to Article VIII; provided, further, that Merger Sub shall only be required to provide for one such time as such conditions are satisfied or waived extension of the Offer pursuant to the extent permitted by this AgreementSection 1.01(e)(ii); and
(Biii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any period or periods required by any ruleapplicable Law, regulation, by interpretation or position of the SEC Securities and Exchange Commission (the “SEC”) or its staff or by the New York Stock Exchange (“NYSE”) applicable to the Offer; or (C) extend . Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date (including any rescheduled Expiration Date) without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. Nothing in this Section 1.01 shall affect any of the termination rights set forth in Article VIII.
(f) If fewer than 90% of the number of outstanding shares of Company Common Stock are accepted for a "payment pursuant to the Offer, Parent and Merger Sub may, and at the request of the Company shall, and upon any such request by the Company Parent shall cause the Merger Sub to, provide for one “subsequent offering period" ” (as provided by and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act) for a period of three . Subject to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to conditions of this Agreement and the conditions to the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub shall (and Parent shall cause Merger Sub to) promptly after any Company Common Stock is validly tendered during a “subsequent offering period” (or any extension thereof) accept for payment payment, and purchasepay (subject to any withholding of Tax pursuant to Section 1.01(i) or Section 2.02(g)) the Offer Price net to the seller in cash, as without interest, for, each share of Company Common Stock that is validly tendered during such “subsequent offering period” or any extension thereof promptly as practicable after any such share of Company Common Stock is tendered during any such period. The Offer Documents will provide for the date on which Parent or possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.01(f).
(g) In the event that this Agreement is terminated pursuant to Article VIII, Merger Sub shall (as and Parent shall cause Merger Sub to) (i) within one business day of such termination, terminate the case may beOffer, (ii) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all not acquire any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and (iii) cause any depository acting on behalf of Merger Sub are permitted to accept and pay for under return, in accordance with applicable lawLaw, all tendered shares of Company Common Stock to the registered holders thereof.
(bh) As promptly as reasonably practicable but in no event later than ten business days after on the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall prepare and file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which shall contain an offer to purchase and exchange and the “Schedule TO”) that will contain or incorporate by reference all or part the Offer to Purchase, the summary advertisement and form of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any amendments and supplements or amendments thereto and including exhibits thereto, the "“Offer Documents"”). Each of Parent, Parent and Merger Sub and the Company shall as promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to as practicable cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of the Company's stockholders, shares of Company Common Stock in each case as accordance with and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective Rule 14d-4 under the Securities Act as promptly as practicable after its filing Exchange Act. Parent and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company Merger Sub agree that they shall cause the CVR Trust Offer Documents filed with the SEC by either Parent or Merger Sub to file comply in all material respects with the final prospectus included therein under Rule 424(b) promulgated pursuant Exchange Act and other applicable Laws. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub and Parent’s counsel all information concerning the Securities ActCompany, the Company’s Subsidiaries and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.01(h), including such information required by applicable Laws to be set forth in the Offer Documents. Each of No filing of, or amendment or supplement to, the parties hereto Offer Documents will be made by Parent or Merger Sub, without providing the Company and their respective its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior thereon and giving due consideration to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, If at any time prior to the time of consummation of the Offer, Acceptance Time or during any “subsequent offering period” (or extension thereof) any information relating to the Company, Parent, Merger Sub or the CVR Trust, ParentSub, or any of their respective affiliatesAffiliates, directors or officers or directors, should be discovered by any of the Company or Parent and parties hereto, which should be set forth in an amendment or a supplement to the Registration Statement, Offer Documents so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party parties hereto, and Parent and Merger Sub shall promptly file with the SEC an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable lawLaw, disseminated shall disseminate such amendment or supplement to the stockholders of the Company. Parent and Merger Sub shall notify the Company promptly of the receipt of any comments, whether written or oral, from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Offer Documents or for additional information, and shall promptly supply the Company with copies of all correspondence (including a written summary of any oral communications) between Parent, Merger Sub or any of their respective Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Offer Documents. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(ci) If any portion of the Offer Price is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock are registered, the amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), or such other person, or otherwise) payable on account of such issuance or transfer to such other person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, unless evidence satisfactory to Merger Sub of the payment of such Taxes, or exemption therefrom, is submitted. For the avoidance of doubt, Section 2.02(g) applies to payments made pursuant to this Section 1.01.
(j) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(k) If, between the date of this Agreement and the Acceptance Time, the outstanding shares of Company Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization (but excluding any change that results from (i) the exercise of stock options or the conversion into Company Common Stock of other equity awards relating to the Company Common Stock or (ii) the grant of stock-based compensation (other than any such grants not made in accordance with the terms of this Agreement) to directors or employees of the Company or its Subsidiaries under the Company’s stock option or compensation plans or arrangements), the Offer Price shall be appropriately and proportionately adjusted to reflect such reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization.
Appears in 1 contract
Sources: Merger Agreement (Dollar Thrifty Automotive Group Inc)
The Offer. (a) Subject to the terms and conditions of set forth in this Agreement and Agreement, provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof 8 and none of the events set forth in paragraphs (a) through (e) or (h) 1 and 2 of Exhibit Annex A hereto shall have occurred or be existingoccurred, as promptly as reasonably practicable after the date of this Agreement, but in no event later than ten business days (10) Business Days after the date of the public announcement of this Agreement, Parent and Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer Offer, within the meaning of the applicable rules and regulations of the Securities SEC, to purchase any and Exchange Commission (all outstanding Shares at a price per Share equal to the "SEC")Offer Price. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Exhibit A. Annex A (the “Offer Conditions”).
(b) The initial expiration date of the Offer shall be on the 25th business day date that is the twentieth (20th) Business Day following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2) (such date being the initial "“Expiration Date," ” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "“Expiration Date"”). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, unless the Offer is terminated in accordance with Article 8, if, on the initial Expiration Date or any subsequent Expiration Date, all of the Offer Conditions have not been satisfied or waived, then Merger Sub shall, and Parent shall cause Merger Sub to, subject to the rights of the parties under Article 8, extend (and re-extend) the Offer and its Expiration Date beyond the initial Expiration Date or such subsequent Expiration Date; provided that any such extension shall be in increments determined by Merger Sub of not more than ten (10) Business Days. The Offer may (but shall not be obligated toterminated prior to its Expiration Date (as such Expiration Date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article 8. In no event shall Merger Sub extend the Offer beyond the date that is five (5) Business Days prior to the Walk Away Date without the prior written consent of the Company and in its sole and absolute discretion. Notwithstanding the foregoing, (A) from time subject to time the rights of the parties under Article 8, Merger Sub shall extend the Offer ifOffer, at the scheduled Expiration Date, any of the conditions of the Offer and Parent shall not have been satisfied or waived until such time as such conditions are satisfied or waived cause Merger Sub to the extent permitted by this Agreement; (B) extend the Offer Offer, for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by any other Law.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer; or . Merger Sub shall, and Parent shall cause Merger Sub to, comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the foregoing, Merger Sub shall (Cand Parent shall cause Merger Sub to) extend accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its discretion, elect to provide for a "subsequent offering period" period (as provided by and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange ActAct (each a “Subsequent Offering Period”) for a period following the Acceptance Time if (i) Merger Sub shall have complied with all of three to twenty business days in order to acquire the conditions of Rule 14d-11 under the Exchange Act and (ii) at least the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing, including all Shares validly tendered and not properly withdrawn at the Acceptance Time) represent less than 90% of the then outstanding shares number of Shares on a Fully Diluted Basis; provided, however, that if Merger Sub is required to exercise the Top-Up Option and the Company delivers the Top-Up Option Shares upon such exercise pursuant to Section 1.4(c), Merger Sub shall not be permitted to provide for a Subsequent Offering Period. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 70% but less than 90% of the Shares outstanding on a Fully-Diluted Basis at that time (which shall include (i) Shares beneficially owned by Parent, Merger Sub and their respective Subsidiaries, which Shares shall be converted into direct ownership at or prior to the expiration of the Offer by Parent, Merger Sub or their respective Subsidiaries, as the case may be, and (ii) Shares validly tendered in the Offer and not properly withdrawn at the Acceptance Time), upon the request of the Company Common Stock(which may only be made once), Merger Sub shall provide for, and Parent shall cause Merger Sub to provide for, a Subsequent Offering Period of at least ten (10) Business Days; provided, however, that if Merger Sub is required to exercise the Top-Up Option and the Company delivers the Top-Up Option Shares upon such exercise pursuant to Section 1.4(c), the Company shall not have the right to request Merger Sub to provide for a Subsequent Offering Period. On Subject to the terms and subject to the conditions to the Offer that are set forth in this AgreementAgreement and the Offer, promptly after the Expiration Date, either Parent or shall cause Merger Sub shall to, and Merger Sub shall, accept for payment and purchase, pay for all Shares validly tendered and not properly withdrawn during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) promulgated under the date on which Exchange Act.
(e) Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) amend, change or waive the Minimum Tender Condition;
(iv) except as expressly provided in Section 1.1(b), extend or otherwise change the Expiration Date, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of the Offer Price;
(v) change the form of consideration payable in the Offer;
(vi) impose any condition to the Offer other than the Offer Conditions; or
(vii) otherwise amend, modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub (as to consummate the case may be) first accepts shares for payment pursuant to Offer, the Offer (Merger or the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawTransactions.
(bf) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall contain an offer to purchase and exchange and will (i) contain or incorporate by reference all or part of the Registration Statement an offer to purchase and a related letter of transmittal and summary advertisement and such other information or documents as required by Law (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, being referred to as the "“Offer Documents")”) and (ii) be in form reasonably satisfactory to the Company. The Company shall as promptly as practicable upon request of Parent, provide Parent and Merger Sub with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the requirements of applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the holders of Shares, 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, except that no covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that such information shall have originally been or shall become false or misleading in the Offer Documents do not contain any material respect (whether by virtue untrue statement of a material misstatementfact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, material omission or otherwise)in light of the circumstances under which they are made, not misleading. Each of Parent and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable U.S. federal securities lawsLaws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given afforded a reasonable opportunity to review and comment upon the Offer Documents prior to their filing each time before they are filed with the SEC or dissemination and/or disseminated to holders of Shares (and the stockholders of Company and its counsel shall provide any comments thereon as soon as reasonably practicable, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the CompanyCompany and its counsel). Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel copies of any written comments (and orally, or telephonic notification of any oral comments), comments or other communications Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and or other communications, shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments. The comments or other communications, and shall provide the Company will advise with copies of all written responses and telephonic notification of any oral responses thereto of Parent or Merger Sub or their counsel, provided that Parent and Merger Sub promptly after it receives notice shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments or other communications and to provide comments on that response (to which reasonable and good faith consideration shall be given by Parent and Merger Sub).
(g) Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall terminate or withdraw the Registration Statement and any supplement or amendment that has been filed have become effective, Offer without the prior written consent of the issuance Company in its sole discretion. In the event this Agreement is terminated pursuant to Section 8.1A, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering shareholders.
(h) The Offer Price shall be adjusted to reflect fully the effect of any stop orderreclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock effected by the suspension Company in accordance with the terms and conditions of this Agreement, and, in particular, in accordance with the qualification limitations set forth in Section 5.1(b)(vi), and occurring (or for which a record date is established) after the date of this Agreement and prior to the CVR Certificates issuable payment by Merger Sub for the Shares validly tendered and not properly withdrawn in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII Eight hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but practicable, and in no any event later than ten business days after the date of the public announcement within seven (7) Business Days, following execution of this Agreement, Parent and Merger Sub (i) shall cause the Purchaser to commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all of the outstanding Common Shares at the Offer Price; (ii) shall, upon commencement of the Offer but after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO and all other necessary documents with the Securities and Exchange Commission (the "“SEC"”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”); and (iii) shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligations obligation of Parent and Merger Sub the Purchaser to accept for payment, payment or pay for any Common Shares validly tendered and pay for, any shares of Company Common Stock tendered not validly withdrawn pursuant to the Offer are will be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A. The initial expiration date Annex I hereto.
(b) Parent on behalf of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub Purchaser expressly reserve reserves the right from time to time, subject to Section 1.1(c), to waive any condition of the Tender Offer Conditions (other than the Minimum Condition (as defined in Annex I hereto)) or to increase the Offer Price or modify to make any other changes in the terms and conditions of the Offer, except ; provided that, without the prior written consent of the Company, Merger Sub the Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce decrease the Offer Price to be paid pursuant to the OfferPrice, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Common Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common StockShares. Notwithstanding The Offer shall remain open until the foregoing, Merger Sub may date that is twenty (but shall not be obligated to20) Business Days (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) after (and including the day of) the commencement of the Offer (the “Expiration Date”), without unless the consent Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the terms of the Company succeeding two sentences or as may be required by applicable Law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that the Purchaser may provide a subsequent offering period after the Expiration Date, in its sole and absolute discretion, (A) from time to time extend accordance with Rule 14d-11 under the Offer if, Exchange Act. If at the scheduled any Expiration Date, any of the conditions of set forth in Annex I hereto (the “Tender Offer shall Conditions”) is not have been satisfied or waived by the Purchaser, (i) the Purchaser shall extend the Offer from time to time for periods of not more than five (5) Business Days each until such the date that is twenty (20) Business Days after the initial Expiration Date (for the avoidance of doubt, the initial Expiration Date is the twentieth Business Day after the commencement of the Offer) (as long as the Company Board continues to recommend the Offer), and (ii) the Purchaser may extend the Offer from time as such conditions to time for periods of not more than ten (10) Business Days each until the earlier of (x) the date on which all of the Tender Offer Conditions are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Article Eight hereof; provided, however, that, on the Expiration Date, if the waiting period under the HSR Act or under any material applicable foreign statutes or regulations applicable to the extent permitted by this Agreement; (B) Merger shall have not expired or been terminated, the Purchaser shall extend the Offer from time to time until such expiration or termination under the HSR Act or such other material applicable foreign statutes or regulations. Notwithstanding the foregoing, the Purchaser and Parent may, without receiving the consent of the Company, extend the Expiration Date for any period required by any rule, regulation, interpretation or position the applicable rules and regulations of the SEC SEC, New York Stock Exchange (“NYSE”) or any other stock exchange or automated quotation system applicable to the Offer; or (C) extend . Subject to the terms of the Offer for a "subsequent offering period" (and this Agreement and the satisfaction of all the Tender Offer Conditions as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of Expiration Date, the Company Purchaser will accept for payment and pay for all Common Stock. On the terms Shares validly tendered and subject to the conditions not validly withdrawn pursuant to the Offer that are set forth in this Agreement, promptly after the Expiration Date. Without the prior written consent of the Company, either Parent or Merger Sub the Purchaser shall not accept for payment and purchaseor pay for any Common Shares in the Offer if, as promptly as practicable after a result, the date on which Parent or Merger Sub (as Purchaser would acquire less than the case may be) first accepts shares for payment pursuant number of Common Shares necessary to satisfy the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawMinimum Condition.
(bc) As promptly as reasonably practicable but Parent and the Purchaser represent that the Offer Documents will comply in no event later than ten business days after all material respects with the provisions of applicable federal securities laws and, on the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file filed with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offerfirst published, Parent and Merger Sub shall file with the SEC, and cause to be disseminated sent or given to the Company's stockholders’s shareholders, as 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 extent required statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company or the dealer-manager in writing for inclusion in the Offer Documents. The Company represents that the information supplied by the Company in writing for inclusion in the Offer Documents will comply in all material respects with the provisions of applicable federal securities lawslaws and, a Tender Offer Statement on Schedule TO the date filed with respect the SEC and on the date first published, sent or given to the OfferCompany’s shareholders, which shall not contain an offer any untrue statement of a material fact or omit to purchase and exchange and will contain state any material fact required to be stated therein or incorporate by reference all or part necessary in order to make the statements made therein, in light of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to circumstances under which the Offer will be made (including the Registration Statement)they were made, together with any supplements or amendments thereto, the "Offer Documents")not misleading. Each of Parent, Merger Sub Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to shareholders of the Company's stockholders, in each case case, as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Tektronix Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events --------- set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or and be existingcontinuing, Purchaser shall commence the Offer as promptly as reasonably practicable but in no event later than ten business days after the date hereof. The obligation of Purchaser to make payment for the Trust Units pursuant to the Offer shall be subject to the condition (the "Minimum Condition") that ----------------- Beneficiaries shall have validly tendered, and not withdrawn, 8,651 Trust Units prior to the expiration of the public announcement Offer and also shall be subject to the satisfaction of this Agreementeach of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, Parent to increase the price per Trust Unit payable in the Offer, and Merger Sub shall commence to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be -------- ------- made which decreases the price per Trust Unit payable in the Offer within or which reduces the meaning maximum number of Trust Units to be purchased in the Offer or which imposes conditions to the Offer in addition to those set forth in Annex A hereto. Notwithstanding the foregoing, Purchaser may, without the consent of the applicable rules and regulations Liquidating Trustee: (i) extend the Offer beyond the scheduled expiration date, which shall be 20 business days following the commencement of the Offer, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser's obligation to pay for the Trust Units shall not be satisfied or waived; or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay foror the --- staff thereof, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer . Purchaser shall pay for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three up to twenty business days in order to acquire at least 90% 21,627 of the outstanding shares of Trust Units which Beneficiaries have validly tendered (and not withdrawn) promptly following the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares acceptance thereof for payment pursuant to the Offer Offer; provided that, if more than 21,627 Trust Units are so tendered, the Purchaser ------------- shall accept and purchase at least 21,627 Trust Units from such Beneficiaries on a pro rata basis, with such adjustments to eliminate fractions as the Purchaser, in its sole discretion, shall determine. 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 Trust Units in order to comply in whole or in part with applicable laws. Any such delay shall be effected in compliance with Rule 14e-1(c) under the Securities Exchange Act of 1934, as amended (the "Acceptance DateExchange Act"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.. ------------
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule -------- TO") with respect to the Offer. The Schedule TO shall contain or shall -- incorporate by reference an offer to purchase (the "Offer to Purchase") and ----------------- forms of the related transfer agreement (the "Transfer Agreements") and notices ------------------- and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other documents, together with all supplements and amendments thereto, being referred to herein collectively as the "Offer Documents"). Purchaser and --------------- Liquidating Trustee agree to correct promptly any information provided by any of them for use in the Offer Documents that shall have become false or misleading, and Purchaser further agrees to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and cause the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersBeneficiaries, in each case as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Liquidation Agreement (Sulzer Medica Usa Holding Co)
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and that none of the events set forth in paragraphs Paragraph (a) through (e) or (h2) of Exhibit A Annex I hereto shall exist or have occurred or and be existingcontinuing, as promptly as reasonably practicable after the date hereof, but in no event later than ten the fifth business days day after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase all of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any 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 pay for shares of Company Common Stock validly tendered pursuant to the Offer are and not subsequently withdrawn shall be subject only to the conditions set forth in Exhibit A. Annex I hereto (the “Offer Conditions”). The initial expiration date of the Offer shall be the 25th business day following the commencement of on which Merger Sub “commences” the Offer (within the initial "Expiration meaning of Rule 14d-2 under the Exchange Act) is hereafter referred to as the “Offer Commencement Date," and any expiration time and date established pursuant to an authorized extension of ”. To the Offer as so extendedextent permitted by applicable Law, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve reserves the right to waive any condition to of the Offer or modify Conditions and to make any change in the terms of the Offer, except that, that without the written prior consent of the Company, Merger Sub shall not (iA) reduce decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number or percentage of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition (as defined in Exhibit AAnnex I), add (D) impose any conditions to the Offer in addition to the conditions set forth in Exhibit A on Annex I, (E) amend or modify any condition set forth the Offer in Exhibit A in any a manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to taken as a whole, or (F) extend the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust Expiration Date (as defined in Annex I) except as required or permitted by this Section 5.16 1.1(a) . The Expiration Date shall be the 20th Business Day next following the Offer Commencement Date (a)) to file with the SEC under the Securities Act of 1933, calculated as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunderset forth in Rule 14d-1(a) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b3) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Natrol Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingSection 8.01 hereof, as promptly as reasonably practicable but after the Agreement Date (and in any event no event later than ten business days fifteen (15) Business Days after the date of the initial public announcement of this Agreement), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)), the Offer to purchase all of the Securities and Exchange Commission (outstanding Shares at the "SEC")Offer Price. The obligations obligation of Parent and Merger Sub to accept for payment, payment and pay for, for any shares of Company Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be subject only to (i) the 25th business day following the commencement of the Offer condition that there shall be validly tendered (the initial "Expiration Date," and not including any expiration time and date established Shares tendered pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify guaranteed delivery procedures that were not actually delivered) in accordance with the terms of the Offer, except prior to the scheduled expiration of the Offer (as it may be extended from time to time hereunder), and not properly withdrawn, a number of Shares that, without together with the written consent Shares then directly or indirectly owned by Parent, represents at least sixty-seven percent (67%) of all of the Company’s outstanding Shares immediately prior to the Share Acceptance Time (the “Minimum Condition”), and (ii) the conditions set forth in Annex II (which is incorporated by reference into this Agreement) and no other conditions (together with the Minimum Condition, the “Offer Conditions”). Merger Sub shall not (i) reduce Sub, or Parent on behalf of Merger Sub, expressly reserves the number right to waive, in its sole discretion, in whole or in part, any of shares the Offer Conditions and to make any change in the terms of Company Common Stock subject or conditions to the Offer; provided, however, 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 and absolute discretion), (iiA) reduce the Offer Price Minimum Condition may not be waived or amended, (B) no change may be made that changes the form of consideration to be paid pursuant to the Offer, (iii) change decreases the Offer Price or waive the Minimum Tender Condition (as defined number of Shares sought in Exhibit A)the Offer, add imposes conditions to the conditions Offer in addition to those set forth in Exhibit A Annex II, or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer otherwise amends or (vi) otherwise amend modifies the Offer in any manner adverse to the holders of Company Common StockShares, and (C) the Offer may not be extended except as set forth in this Section 1.01. Subject to the terms and conditions of this Agreement, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) Business Days (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 the terms of this Agreement, the “Expiration Date”). Notwithstanding anything in this Agreement to the foregoingcontrary, unless this Agreement has been terminated in accordance with Section 8.01, Merger Sub may (but shall not be obligated to)or Parent on its behalf) (i) may, in its sole discretion, without the consent of the Company Company, and in its sole and absolute discretionwithout limiting Parent’s or Merger Sub’s obligations under the following sentence, (A) from time to time extend the Offer ifon one or more occasions, at in consecutive increments of up to fifteen (15) Business Days each, for any period up to and including the Outside Date if on any then-scheduled Expiration Date, Date any of the conditions of the Offer shall Conditions has not have been satisfied or waived until such time as such conditions are satisfied or waived or, to the extent permitted permitted, waived in writing by this Agreement; Merger Sub (Bor Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived, and (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC United States Securities and Exchange Commission (the “SEC”) or its staff applicable to the Offer; or . Parent and Merger Sub agree that, except to the extent this Agreement is terminated in accordance with Section 8.01 and except otherwise agreed in writing by the Company prior to any then-scheduled Expiration Date, Merger Sub shall (Cand Parent shall cause Merger Sub to) extend the Offer for on one or more occasions, in consecutive increments of up to fifteen (15) Business Days each, up to and including the Outside Date, if on any then-scheduled Expiration Date any of the Offer Conditions have not been satisfied or, to the extent permitted, waived in writing by Merger Sub (or Parent on its behalf), until such Expiration Date on which all Offer Conditions shall then be satisfied or, to the extent permitted, waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the Outside Date or after the Company delivers, or is required to deliver, to Parent a "notice in accordance with Section 5.02 with respect to a Takeover Proposal, except to the extent that at least one (1) day prior to the then-scheduled Expiration Date (i) the Takeover Proposal giving rise to such notice has been withdrawn or the Company Board has rejected the Takeover Proposal giving rise to such notice, (ii) the Company Board has reconfirmed the Board Recommendation (after receiving such Takeover Proposal), and (iii) the withdrawal or rejection of such Takeover Proposal or such reconfirmation of the Board Recommendation shall have been publicly announced by the Company. Following the expiration of the Offer, Merger Sub (or Parent on its behalf) may, in its sole discretion, provide a subsequent offering period" period or one or more extensions thereof (as provided by a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , if, as of the outstanding shares 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 Offer that number of Shares necessary to permit the Merger to be effected without a meeting of stockholders of the Company Common Stockin accordance with Section 253 of the Delaware General Corporation Law, as amended (the “DGCL”). On Subject to the foregoing, including the requirements of Rule 14d-11 under the Exchange Act, and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for, as promptly as practicable, (1) after the Expiration Date, either Parent or Merger Sub shall accept for payment all Shares validly tendered and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment not properly withdrawn pursuant to the Offer and/or (the "Acceptance Date"), 2) all Shares validly tendered in any Subsequent Offering Period. The Company agrees that no shares of Company Common Stock validly held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and not withdrawn withhold from the consideration otherwise payable pursuant to the Offer that Parent and to any holder of Shares such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Laws relating to Taxes. To the extent that amounts are permitted so withheld and paid over to accept the appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Shares in respect of which such deduction and pay for under withholding were made by Merger Sub. Except to the extent this Agreement is terminated in accordance with Section 8.01, Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company (in its sole and absolute discretion). 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 lawLaw, all tendered Shares that have not then been purchased in the Offer to the registered holders thereof.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments, and supplements thereto and including exhibits thereto, the “Schedule TO”) with the SEC, which comply in all material respects with the requirements of the Exchange Act and shall contain an offer Offer to purchase Purchase reflecting the terms and exchange conditions of this Agreement, and will contain or incorporate by reference all or part a form of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO other ancillary Offer documents and the documents included therein pursuant to which instruments, if any, in respect of the Offer will be made (including together with the Registration Statement)Schedule TO, collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”), and (ii) cause the Offer Documents to be disseminated to holders of Shares as and to the extent required by applicable Law. Upon reasonable request, and to the extent not publicly available, the Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable Law for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company shall agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Parent and Merger Sub and the Company shall agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended corrected or supplemented supplemented, to be filed with the SEC and the Offer Documents Documents, as so amended corrected or supplemented supplemented, to be disseminated to the Company's stockholdersholders of Shares, in each case as as, and to the extent extent, required by or deemed advisable under applicable federal securities lawsLaw. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing Schedule TO before it is filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger SubSub shall consider in good faith the reasonable additions, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to deletions or changes suggested thereto by the Company and its counsel, or . Parent and Merger Sub shall promptly provide the Company and their counsel, respectively, in writing its counsel with copies of any written comments (or communications, and orally, shall inform them of any oral comments)comments or communications, that Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive after the Agreement Date from the SEC or its staff with respect to the Offer Documents or otherwise with respect to the Offer promptly after the receipt of those comments or other communications. The Company and its counsel shall be given a reasonable opportunity to review any written responses to such SEC comments and Parent and Merger Sub shall consult with consider in good faith the reasonable additions, deletions or changes suggested thereto by the Company and its counsel, or . Parent and Merger Sub and their counsel, respectively, prior to responding shall respond promptly to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, comments of the issuance of any stop order, SEC or of the suspension of the qualification of the CVR Certificates issuable in connection its staff with the Offer for offering or sale in any jurisdiction. If, at any time prior respect to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanySchedule TO.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been validly terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingterms, as promptly as reasonably practicable after the date of this Agreement, but in no event later than ten four (4) business days (as defined in Rule 14d-1(g)(3) promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) after the date of the public announcement of this Agreement, Parent and Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Exhibit A. Annex A (the “Tender Offer Conditions”). The Offer Price shall be net to the seller in cash, without interest.
(b) The initial expiration date time of the Offer shall be midnight, New York City time on the 25th twentieth (20th) business day following the commencement of the Offer (determined using Exchange Act Rule 14d-1(g)(3)) (the initial "“Initial Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"”). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with the terms hereof, (i) Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of The Nasdaq Global Market Inc. (“Nasdaq”), the SEC or the staff thereof applicable to the Offer; Offer or any period required by any other Law, and (Cii) if on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (together with the Initial Expiration Date, the “Expiration Date”), any Tender Offer Condition is not satisfied or waived, Merger Sub shall extend the Offer for a "subsequent offering period" one (1) or more successive periods as provided determined by Rule 14d-11 under the Exchange ActMerger Sub of up to ten (10) for a period of three to twenty business days each (or any longer period as may be requested by Merger Sub and approved in advance by the Company) in order to acquire permit the satisfaction of all of the Tender Offer Conditions; provided, however, that in no event with respect to either clause (i) or (ii) shall Merger Sub be required to extend the Offer beyond the Walk Away Date, and provided further however, that if at least the Initial Expiration Date or at any subsequent Expiration Date (other than any such Expiration Date that follows an extension of the Offer pursuant to Section 1.1(c)), all of the Tender Offer Conditions (except for the Minimum Condition) are satisfied or have been waived, Merger Sub shall only be required to extend the Offer and its Expiration Date beyond the Initial Expiration Date or such subsequent Expiration Date for one or more successive periods in order to permit the satisfaction of all of the Tender Offer Conditions for an aggregate of forty (40) business days, unless the Minimum Condition shall be satisfied earlier. The Offer may not be terminated prior to the Walk Away Date, unless this Agreement is validly terminated in accordance with Article 9, in which case Merger Sub shall (and Parent shall cause Merger Sub to) irrevocably and unconditionally terminate the Offer promptly (but in no event more than one (1) business day) after such termination of this Agreement. Nothing in this Section 1.1(b) shall affect any termination rights in Article 9; and in the event of any conflict between the provisions of this Section 1.1(b) and Article 9, Article 9 shall be controlling.
(c) If fewer than 90% of the number of outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that Stock are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares accepted for payment pursuant to the Offer (excluding for this purpose as shares that are tendered for payment pursuant to the "Acceptance Date"Offer any shares that are tendered in the Offer pursuant to notices of guaranteed delivery), all Merger Sub may, without the consent of the Company, elect to provide a subsequent offering period (and one or more extensions thereof) for the Offer in accordance with Rule 14d-11 of the Exchange Act (each a “Subsequent Offering Period”) following its acceptance for payment of shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include Subsequent Offering Period, if any, shall be a preliminary prospectus containing period of not less than three (3) nor more than twenty (20) business days in the information required under aggregate (determined in accordance with Rule 14d-4(b14d-1(g)(3) under the Exchange Act. ).
(d) Merger Sub expressly reserves the right to waive any condition to the Offer, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the consent of the Company, Merger Sub shall not do any of the following:
(i) reduce the number of Shares sought to be purchased by Merger Sub in the Offer;
(ii) reduce the Offer Price;
(iii) modify or waive the Minimum Tender Condition (as defined in Annex A);
(iv) add to the Tender Offer Conditions set forth in Annex A or modify or supplement any Tender Offer Condition (other than to waive such Tender Offer Conditions);
(v) change the form of consideration payable in the Offer; or
(vi) other than as permitted or required by Section 1.1(b) or Section 1.1(c), extend or otherwise change the Expiration Date of the Offer; or
(vii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Shares.
(e) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal containing the terms and conditions set forth in this Agreement and Annex A and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, being referred to as the "“Offer Documents"”). The Company shall promptly provide Parent with all information concerning the Company that is required by applicable federal securities laws to be included in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue the Offer Documents do not contain an untrue statement of a material misstatementfact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, material omission or otherwise)in light of the circumstances under which they are made, not misleading. Each of Parent and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities lawsLaws. Each of the parties hereto Parent and Merger Sub shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, afford the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing before they are filed with the SEC or dissemination and disseminated to stockholders, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the stockholders of the CompanyCompany and its counsel. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall (i) provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel copies of any written comments (and orally, a reasonably detailed description of any oral comments), ) Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall comments, (ii) consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments. The , (iii) provide the Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement its counsel a reasonable opportunity to review and comment on any supplement written or oral response to such comments or any proposed amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with to the Offer for offering or sale in any jurisdiction. If, at any time Documents prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed filing thereof with the SEC and, to and (iv) provide the extent required by applicable law, disseminated to the stockholders Company and its counsel with copies of the Companyall such responses.
(cf) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub becomes obligated to purchase 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 Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer promptly (within the meaning of Rule 14e-1(c) under the Exchange Act) after the expiration of the Offer; provided that Merger Sub shall (and Parent shall cause Merger Sub to) pay for any Shares validly tendered in any Subsequent Offering Period promptly after such Shares are tendered.
(g) The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Shares occurring or having a record date on or after the date of this Agreement and prior to the payment by Merger Sub for the Shares.
Appears in 1 contract
Sources: Merger Agreement (Lasercard Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that (i) this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 11.01 and none of (ii) the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto Company shall have occurred or be existingcomplied with its obligations under Section 2.02, as promptly as reasonably practicable after the date hereof, but in no event later than ten business days after 10 Business Days following the date of the public announcement of this Agreement, Merger Subsidiary shall, and Parent and Merger Sub shall cause it to, commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations ▇▇▇▇ ▇▇▇) the Offer to purchase for cash all of the Securities and Exchange Commission (outstanding Shares at the "SEC")Offer Price. The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are shall be subject to the Minimum Condition (as defined in Annex I) and the satisfaction, or waiver by Parent or Merger Subsidiary, of the other conditions set forth in Exhibit A. Annex I hereto (together with the Minimum Condition, the “Offer Conditions”). The initial expiration date on which Merger Subsidiary commences (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer shall be is referred to as the 25th business day following the commencement of the “Offer Commencement Date”.
(the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). b) Parent and Merger Sub Subsidiary expressly reserve the right to waive any condition to of the Offer or modify Conditions and to make any change in the terms of or conditions to the Offer, except including raising the Offer Price; provided that, without the prior written consent of the CompanyCompany or unless otherwise expressly contemplated by this Agreement, neither Parent nor Merger Sub shall not Subsidiary shall:
(i) reduce waive or change the number of shares of Company Common Stock subject to the Offer, Minimum Condition;
(ii) reduce decrease the Offer Price to be paid pursuant to the Offer, Price;
(iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable to be paid in the Offer;
(iv) decrease the number of Shares sought in the Offer;
(v) extend the expiration date of the Offer or except as otherwise provided herein; or
(vi) impose additional Offer Conditions or otherwise amend amend, modify or supplement any of the Offer Conditions or terms of the Offer in any a manner adverse to that adversely affects the holders of Company Common Stockthe Shares.
(c) Unless extended as provided in this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the time and date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) Merger Sub may (but Subsidiary shall, and Parent shall not be obligated cause it to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or Nasdaq applicable to the Offer or for any period otherwise required by Applicable Law, (ii) if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (e) through (h) on Annex I have not been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to, upon the written request of the Company no less than one Business Day prior to any then scheduled Expiration Date, extend the Offer; , up to an aggregate of 20 Business Days (whether in one or more periods as so requested by the Company), in order to permit the satisfaction of such conditions and (Ciii) if, on or prior to any then scheduled Expiration Date, any of the conditions set forth in clauses (a) through (d) on Annex I have not been satisfied and have not been waived, then Merger Subsidiary shall, and Parent shall cause it to extend the Offer for one or more periods ending no later than the End Date to permit the satisfaction of such conditions. The Offer may be terminated prior to the then scheduled Expiration Date, but only if this Agreement is validly terminated in accordance with Article 11. If this Agreement is validly terminated pursuant to Article 11, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) promptly (and in any event within two Business Days of such termination), irrevocably and unconditionally terminate the Offer. If this Agreement is validly terminated prior to the acceptance for payment of Shares in the Offer, Merger Subsidiary shall promptly return, and shall cause any depositary acting on behalf of Merger Subsidiary to return, in accordance with Applicable Law, all tendered Shares to the registered holders thereof. Notwithstanding the foregoing, Merger Subsidiary shall, if requested by the Company, provide for a "subsequent offering period" period (as provided by and one or more extensions thereof) (“Subsequent Offering Period”) of up to 20 Business Days, in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares 1934 Act, if, at the commencement of the Company Common StockSubsequent Offering Period, (x) the Short Form Threshold has not been reached and (y) the Top-Up Option is not exercisable hereunder in accordance with its terms. On Subject to the terms and subject conditions of this Agreement and the Offer, Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for all Shares as they are validly tendered during such Subsequent Offering Period and in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer Documents will provide for the possibility of a Subsequent Offering Period in a manner consistent with the terms of this Section 2.01(c).
(d) Subject to the terms and conditions to the Offer that are set forth in this AgreementAgreement and to the satisfaction of the Minimum Condition and the satisfaction or waiver of the other Offer Conditions, promptly after the Expiration DateMerger Subsidiary shall, either and Parent or Merger Sub shall accept for payment and purchasecause it to, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares Subsidiary is legally permitted to do so under Applicable Law, accept for payment pursuant to the Offer (the "Acceptance Date"), and pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that (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 and pay for all Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the Minimum Condition and the satisfaction or waiver of each of the other Offer Conditions (and shall not be subject to any other conditions). 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 seller in cash, without interest, less any withholding of Taxes required by Applicable Law.
(e) As soon as practicable on the Offer Commencement Date, Parent and Merger Sub are permitted to accept and pay for under applicable law.
Subsidiary shall (bi) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer include the summary term sheet required thereby and, as exhibits, the Offer to purchase and exchange and will contain or incorporate by reference all or part Purchase, a form of the Registration Statement and a related letter of transmittal and transmittal, a form of summary advertisement (such and any schedule or form required to be filed pursuant to the Instructions to Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"). Each of Parent, Merger Sub ”) and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to ii) cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by or deemed advisable under applicable federal securities lawsApplicable Law (including the 1934 Act). Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as The Offer shall be required for conducted in compliance with Applicable Law (including the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company 1934 Act).
(f) Parent and Merger Subsidiary shall cause the CVR Trust Offer Documents to file (i) comply with the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each applicable requirements of the parties hereto 1934 Act and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing (ii) not contain any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement 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 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 party that discovers such “Schedule 14D-9”) or the information shall promptly notify statement containing the other party information required by Section 14(f) of the 1934 Act and an appropriate amendment Rule 14f-1 promulgated thereunder (together with any amendments or supplement describing such information shall be promptly supplements thereto, the “Information Statement”), at the respective times the Schedule 14D-9 or the Information Statement are filed with the SEC andnot 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. 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 (or shall have become known to be) false or misleading in any material respect or as otherwise required by Applicable Law. Parent and Merger Subsidiary shall cause the 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 lawApplicable Law (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 Offer Documents each time before any such document is filed with the SEC, disseminated and Parent and Merger Subsidiary shall give due consideration to any reasonable comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) copies of any written comments or other communications, and shall inform them of any oral communications, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the stockholders Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which due consideration shall be given to reasonable comments). Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the CompanySEC or its staff with respect to the Offer Documents or the Offer.
(cg) Parent shall provide or cause to be provided to Merger Sub on a timely basis Subsidiary all of the funds necessary to purchase any shares of Company Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the OfferOffer (including pursuant to any Subsequent Offering Period), and shall cause Merger Subsidiary to perform, on a timely basis, all of Merger Subsidiary’s obligations under this Agreement.
(h) Nothing in this Section 2.01 shall affect any termination rights in Section 11.01.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement (i) Provided that Parent and provided that this Agreement Purchaser shall not have delivered (and been terminated in accordance with its terms pursuant entitled to Article VII hereof and none deliver) a notice of the events Company’s breach with respect to the Company’s obligations under Section 6.3 (unless all such breaches set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto therein shall have occurred or be existingbeen cured) Purchaser shall, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, and Parent and Merger Sub shall cause Purchaser to commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”)), not later than July 2, 2008 (provided that the Company shall be prepared to disseminate to its stockholders its Schedule 14d-9 and Schedule 14f-1 within such time period) the Offer to purchase all outstanding Shares at the Offer Price. The obligations of Purchaser (and of Parent and Merger Sub to cause Purchaser) to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares validly tendered (and not withdrawn) pursuant to the Offer are shall be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A. A (the “Offer Conditions”). The initial expiration date of the Offer shall be July 30, 2008 (the 25th business day following “Expiration Date”, unless Purchaser shall have extended the commencement period of time for which the Offer (is open pursuant to, and in accordance with, Section 1.1(a)(iii), in which event the initial "term “Expiration Date," and any expiration ” shall mean the latest time and date established pursuant to an authorized extension of as the Offer Offer, as so extended, shall also be defined herein as an "Expiration Date"may expire). Parent and Merger Sub Purchaser expressly reserve reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any condition to the Offer Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub Purchaser shall not (iA) reduce decrease the number Offer Price or change the form of shares of Company Common Stock subject to the consideration payable in the Offer, (iiB) reduce decrease the Offer Price to be paid number of Shares sought pursuant to the Offer, (iiiC) change amend or waive the Minimum Tender Condition (as defined in Exhibit A), (D) add to the conditions set forth in on Exhibit A or A, (E) modify any condition the conditions set forth in on Exhibit A in any a manner adverse to the holders of Company Common Stock, (iv) except as provided below Shares or in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any a manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of would delay consummation of the Offer, any information relating (F) reduce the time period during which the Offer shall remain open, or (G) extend the Expiration Date except as required or permitted by Section 1.1(a)(iii). If, prior to the CompanyPurchase Time, Merger Sub or the CVR Trustthis Agreement is terminated in accordance with Article VIII, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light Purchaser shall (notwithstanding clause (F) of the circumstances under which they were made, not misleading, previous sentence) promptly terminate the party that discovers Offer without accepting any Shares for payment and shall return the Shares tendered promptly after such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companytermination.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto nothing shall have occurred or be existingthat, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, Parent and Merger Sub shall commence had the Offer within been commenced, would give rise to a right to terminate the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered Offer pursuant to the Offer are subject to any of the conditions set forth in Exhibit A. The initial expiration Annex I hereto, as promptly as practicable and in any event within ten days after the date hereof (or such later date as the parties may mutually agree in writing), Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. Merger Subsidiary’s obligation to accept for payment and pay for any Company Shares tendered in the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition subject to the Offer or modify condition that there shall be validly tendered in accordance with the terms of the Offer, except immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Company Shares that, without together with the written consent Company Shares then directly or indirectly owned by Parent, represents at least a majority of all Company Shares then outstanding (the “Minimum Condition”) and the other conditions set forth in Annex I. Merger Subsidiary expressly reserves the right to waive any of the Companyconditions to the Offer 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, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the OfferMinimum Condition may not be waived, (ii) reduce no change may be made that changes the Offer Price form of consideration to be paid pursuant to the Offer, (iii) change decreases the Offer Price or waive the Minimum Tender Condition (as defined number of Company Shares sought in Exhibit A)the Offer or imposes conditions to the Offer in addition to those set forth in Annex I, add to or amends the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A Annex I in any manner materially adverse to the holders of Company Common StockShares, and (iviii) the Offer may not be extended except as provided below set forth in this Section 1.01(a2.01(a). 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 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer (1) if, at the scheduled Expiration Dateor extended expiration date of the Offer, the Minimum Condition or any of the conditions to the Offer set forth in clause (I)(B) of the Offer first paragraph of Annex I shall not have been satisfied or waived waived, from time to time, until such time as the earliest to occur of (x) the satisfaction or waiver of such conditions are satisfied or waived to and (y) the extent permitted by this Agreement; End Date, and (B2) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law; or (C) provided that Merger Subsidiary shall not be required to extend the Offer for beyond the End Date. Following expiration of the Offer, Merger Subsidiary may, in its sole discretion, provide a "subsequent offering period" period (as provided by “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of 1934 Act. Subject to the Company Common Stock. On foregoing, and upon the terms and subject to the conditions to of the Offer that are set forth in this AgreementOffer, promptly after the Expiration Date, either Parent or Merger Sub Subsidiary shall accept for payment and purchase, pay for (A) as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment practicable, all Company Shares validly tendered and not withdrawn pursuant to the Offer, promptly after the final expiration of the Offer, and (B) all Company Shares validly tendered in any Subsequent Offering Period, promptly after such Company Shares are validly tendered. The Offer (the "Acceptance Date"), all shares Price payable in respect of each Company Common Stock Share validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted or validly tendered in any Subsequent Offering Period shall be paid net to accept and pay the holder thereof in cash, subject to reduction for under any applicable lawwithholding Taxes.
(b) As promptly soon as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall (i) file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer to purchase and exchange and will contain include as exhibits or incorporate incorporated by reference all or part thereto, the Offer to Purchase and forms of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which advertisement, if any, in respect of the Offer will be made (including the Registration Statement)collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”), and (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 Sub Subsidiary and the Company shall 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 originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), respect. Parent and each of Parent, Merger Sub and the Company shall Subsidiary agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Company Shares, in each case as and to the extent required by or deemed advisable under applicable U.S. federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger Sub, on the one hand, Subsidiary shall give reasonable and the Company on behalf of the CVR Trust, on the other hand, shall provide good faith consideration to any comments made by the Company and its counsel, or . Parent and Merger Sub Subsidiary shall provide the Company and their counselits counsel with (A) any comments or other communications, respectivelywhether written or oral, in writing any written comments (and orally, any oral comments), that Parent, Merger Sub Subsidiary or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of such those comments or other communications, and shall consult with (B) a reasonable opportunity to participate in the Company and its counsel, or response of Parent and Merger Sub Subsidiary to those comments and their counselto provide comments on that response (to which reasonable and good faith consideration shall be given), respectively, prior to responding to any such comments. The Company will advise including by participating with Parent and Merger Sub promptly after it receives notice that the Registration Statement and Subsidiary or their counsel in any supplement discussions or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection meetings with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanySEC.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable (but in no event later more than ten seven business days days) after the date of day on which the public Purchaser’s intention to make the Offer is publicly announced (which announcement of this Agreementwill be made by the Parent on May 18, Parent and Merger Sub shall 2009) (it being understood that the Purchaser’s obligation to commence the Offer within the time period described in this sentence is conditioned upon the Company’s being prepared to file the Schedule 14D-9 approximately contemporaneously with the commencement of the Offer as provided in Section 1.2(b)), the Purchaser shall commence (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”). The obligations of Parent ), the Offer to purchase any and Merger Sub to accept for payment, and pay for, any all outstanding shares of Company Common Stock at a price of $2.64 per share, net to the seller in cash, without interest thereon (the “Offer Consideration”). On the terms and subject to the prior satisfaction or waiver of the conditions of the Offer and this Agreement, the Purchaser shall accept for payment all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer are as soon as practicable after the expiration of the Offer and shall pay for all such shares of Company Common Stock promptly after acceptance. The obligation of the Parent and the Purchaser to commence the Offer and to accept for payment and pay for shares of Company Common Stock validly tendered in the Offer and not properly withdrawn shall be subject to the conditions set forth in Exhibit A. Annex I to this Agreement.
(b) The initial expiration date of the Offer shall be the 25th 20th business day following the after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"Exchange Act). Parent and Merger Sub expressly reserve the right If on or prior to waive any condition to the Offer or modify the terms then scheduled expiration date of the Offer, except any of the conditions to the Offer shall not have been satisfied, or waived by the Parent or the Purchaser if permitted hereunder (other than any conditions which by their nature are to be satisfied at the Acceptance Time), the Purchaser shall (and the Parent shall cause the Purchaser to) extend the Offer for periods of up to 10 business days each until the earlier of (x) the date on which all of the conditions and requirements set forth in Annex I are satisfied or waived or (y) the date on which this Agreement is terminated in accordance with Section 9.1; provided, however, that in no event shall the Offer be extended beyond the Outside Date without the prior written consent of the Company. The Offer may not be terminated prior to its scheduled expiration (as such expiration may be extended and re-extended in accordance with this Agreement), unless this Agreement is terminated in accordance with Section 9.1. The Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, Merger Sub the Purchaser shall not not:
(i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend Offer, decrease the Offer in any manner adverse to Consideration or decrease the holders number of shares of Company Common Stock. Notwithstanding Stock sought pursuant to the foregoing, Merger Sub may Offer;
(but shall not be obligated to), without ii) extend the consent expiration date of the Company and in its sole and absolute discretion, Offer except (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted required by this Agreement; applicable law (B) extend the Offer including for any period required by any rule, regulation, interpretation or position of the SEC applicable to United States Securities and Exchange Commission (the Offer; “SEC”) or the staff thereof), (B) in accordance with the second sentence of Section 1.1(b) or (C) extend in connection with an increase in the consideration to be paid pursuant to the Offer for a "subsequent offering period" so as to comply with applicable rules and regulations of the SEC;
(as provided by Rule 14d-11 under iii) amend or waive the Exchange ActMinimum Condition;
(iv) for a period amend any term of three the Offer in any manner adverse to twenty business days holders of shares of Company Common Stock; or
(v) impose any condition to the Offer not set forth in order to acquire at least Annex I. If fewer than 90% of the number of outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that Stock are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares accepted for payment pursuant to the Offer (excluding for this purpose as shares that are tendered for payment pursuant to the "Acceptance Date"Offer any shares that are tendered in the Offer pursuant to notices of guaranteed delivery), all the Purchaser may, without the consent of the Company, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the Exchange Act following its acceptance for payment of shares of Company Common Stock validly tendered and not withdrawn pursuant to in the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawOffer.
(bc) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, the Parent and Merger Sub the Purchaser shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part (the “Offer to Purchase”), a form of the Registration Statement and a related letter of transmittal (the “Letter of Transmittal”), and summary advertisement (such Schedule TO ancillary documents and the documents included therein instruments pursuant to which the Offer will be made (including the Registration Statement)collectively, together with any supplements or amendments thereto, the "“Offer Documents"”). Each of Parent, Merger Sub The Parent and the Company shall promptly correct any information provided by it for use in Purchaser agree that the Offer Documents if and to shall comply in all material respects with the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue requirements of a material misstatementapplicable U.S. federal securities laws and, material omission or otherwise), and each of Parent, Merger Sub and on the Company 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 date first filed with the SEC and on the Offer Documents as so amended date first published, sent or supplemented to be disseminated given to the Company's ’s stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing not contain any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement 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 covenant, agreement, representation or warranty is made by the party that discovers such Parent or the Purchaser with respect to information supplied by the Company or any of its stockholders in writing for inclusion or incorporation by reference in the Offer Documents. The Parent and the Purchaser shall promptly notify take all steps necessary to cause the other party Offer Documents to be disseminated to holders of shares of Company Common Stock, as and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable lawU.S. federal securities laws. Each of the Parent, the Purchaser and the Company shall promptly correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and the Parent and the Purchaser shall take all steps necessary to amend or supplement the Schedule TO and, as applicable, the Offer Documents and to cause the Schedule TO as so amended and supplemented to be filed with the SEC and the Offer Documents as so amended and supplemented to be disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given reasonable opportunity to review and comment upon the Offer Documents and any amendments thereto prior to the filing thereof with the SEC or dissemination to the stockholders of the Company. The Parent and the Purchaser shall provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments the Parent, the Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer promptly after the receipt thereof, shall consult with the Company and its counsel prior to responding to any such comments, and shall provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of the Parent or the Purchaser or their counsel. Each of Parent and the Purchaser shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(cd) The Parent shall provide or cause to be provided to Merger Sub the Purchaser on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub the Purchaser becomes obligated to purchase pursuant to the Offer.
(e) The Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as the Purchaser reasonably determines that it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any other applicable law.
Appears in 1 contract
Sources: Merger Agreement (Idm Pharma, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existing, Purchaser shall commence, and Parent shall cause Purchaser to commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten five business days after the initial public announcement of Purchaser's intention to commence the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any such condition, to increase the Per Share Amount and to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, without the prior written consent of the Special Committee, 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 public announcement Offer beyond the twentieth business day following commencement thereof; PROVIDED, HOWEVER, Purchaser may extend the expiration date of this Agreementthe Offer, Parent and Merger Sub shall commence (A) if the conditions to the Offer within set forth in Annex A have not been satisfied, (B) to the meaning of extent necessary to respond to comments on the applicable rules and regulations of Offer Documents (as defined below) from the Securities and Exchange Commission (the "SEC"). The obligations of Parent ) and Merger Sub (C) on one additional occasion, for a period not to accept for payment, and pay for, exceed ten business days or (vi)make any shares of Company Common Stock tendered pursuant to other change in the Offer are subject to the terms or conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner which is materially adverse to the holders of Company Common StockShares. The Per Share Amount shall, (iv) except as provided below subject to any applicable withholding of taxes, be net to each seller in this Section 1.01(a)cash, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On upon the terms and subject to the conditions of the Offer. Subject to the Offer that are set forth in this Agreementterms and conditions of the Offer, promptly after the Expiration DatePurchaser shall, either and Parent or Merger Sub shall cause Purchaser to, accept for payment and purchasepay, as promptly as practicable after expiration of the date on which Parent or Merger Sub (as the case may be) first accepts shares Offer, for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawwithdrawn.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC (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 OfferOffer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, which including all exhibits thereto (together with all amendments and supplements thereto, the "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 PURCHASE") and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and any related summary advertisement (such the Schedule TO and 14D-1, the documents included therein pursuant to which Schedule 13E-3, the Offer will be made (including the Registration Statement)to Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer DocumentsOFFER DOCUMENTS"). Each of Parent, Merger Sub Purchaser and the Company shall correct promptly correct any information provided by it any of them for use in the Offer Documents if and to the extent that such information shall have originally been or which shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)misleading, and each of Parent, Merger Sub Parent and the Company Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 and the Schedule 13E-3, as so amended or supplemented corrected, to be filed with the SEC and the other Offer Documents Documents, as so amended or supplemented corrected, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable federal securities lawsLaw (as defined below). Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effectiveThe Company, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto Special Committee and their respective counsel shall be given a the reasonable opportunity to review and comment upon on the Offer Documents prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Purchaser shall provide to the Company and its counselCompany, or Parent and Merger Sub the Special Committee and their counsel, respectively, in writing respective counsel with a copy of any written comments (and orally, or telephonic notification of any oral comments), Parent, Merger Sub comments Parent or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, Purchaser may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of 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 this Agreement. In the 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 to such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact take all other actions necessary to make resolve the statements issues raised therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub Purchaser on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the terms and conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingthis Agreement, as promptly as reasonably practicable after the date of this Agreement, but in no event later than ten business days (10) Business Days after the date of the public announcement of this Agreement, Parent and Merger Sub shall (and Parent shall cause Merger Sub to) commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) the Offer to purchase any and regulations of all outstanding Shares at a price per Share equal to the Securities and Exchange Commission (the "SEC")Offer Price. The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, purchase, accept for payment, and pay for, any shares of Company Common Stock Shares tendered pursuant to the Offer are subject only to the satisfaction or waiver of each of the conditions set forth in Exhibit A. Annex A (the “Offer Conditions”).
(b) The initial expiration date of the Offer shall be the 25th business day twentieth (20th) Business Day following the commencement of the Offer (determined using Exchange Act Rules 14d-1(g)(3) and 14d-2) (such date being the initial "“Expiration Date," ” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "“Expiration Date"”). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, if, on the initial Expiration Date or any subsequent Expiration Date, all of the Offer Conditions have not been satisfied or waived (other than any Offer Conditions that by their nature cannot be satisfied until the closing of the Offer, which shall be required to be satisfied or waived at the closing of the Offer), then Merger Sub may shall, and Parent shall cause Merger Sub to, subject to the rights of the parties under Article 8, extend (but and re-extend) the Offer and its Expiration Date beyond the initial Expiration Date or such subsequent Expiration Date until the date all of the Offer Conditions are satisfied or waived (other than any Offer Conditions that by their nature cannot be satisfied until the closing of the Offer, which shall be required to be satisfied or waived at the closing of the Offer); provided that any such extension (i) shall be in increments determined by Merger Sub of not more than ten (10) Business Days and (ii) shall not extend beyond the Walk Away Date. The Offer may not be obligated toterminated prior to its Expiration Date (as such Expiration Date may be extended and re-extended in accordance with this Agreement), unless this Agreement is validly terminated in accordance with Article 8. In no event shall Merger Sub extend the Offer beyond the date that is five (5) Business Days prior to the Walk Away Date without the prior written consent of the Company and in its sole and absolute discretion. Notwithstanding the foregoing, (A) from time subject to time the rights of the parties under Article 8, Merger Sub shall extend the Offer ifOffer, at the scheduled Expiration Date, any of the conditions of the Offer and Parent shall not have been satisfied or waived until such time as such conditions are satisfied or waived cause Merger Sub to the extent permitted by this Agreement; (B) extend the Offer Offer, for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by any other Law.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any Shares that Merger Sub becomes obligated to purchase pursuant to the Offer; or . Merger Sub shall, and Parent shall cause Merger Sub to, comply with the obligations respecting prompt payment and announcement under the Exchange Act, and, without limiting the foregoing, Merger Sub shall (Cand Parent shall cause Merger Sub to) extend accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable following the later of: (i) the earliest date as of which Merger Sub is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Offer Conditions shall have been satisfied or waived.
(d) Merger Sub may, in its sole discretion (and without any required consent of the Company, but subject to the terms set forth in this Section 1.1(d)), elect to provide for a "subsequent offering period" period (as provided by and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange ActAct (each a “Subsequent Offering Period”) for a period following the Acceptance Time if (i) Merger Sub shall have complied with all of three to twenty business days in order to acquire the conditions of Rule 14d-11 under the Exchange Act and (ii) at least the commencement of any Subsequent Offering Period (or extension thereof) the number of Shares owned by Parent, Merger Sub and their respective Subsidiaries (including any Shares beneficially owned by any of the foregoing and including all Shares validly tendered and not properly withdrawn at the Acceptance Time) represent less than 90% of the then outstanding shares number of Shares; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), Merger Sub shall not be permitted to provide for a Subsequent Offering Period. If immediately following the Acceptance Time, Parent, Merger Sub and their respective Subsidiaries own more than 70% but less than 90% of the Shares outstanding at that time (which shall include (i) shares beneficially owned by Parent, Merger Sub and their respective Subsidiaries, which Shares shall be converted into direct ownership at or prior to the expiration of the Offer by Parent, Merger Sub or their respective Subsidiaries, as the case may be, and (ii) shares validly tendered in the Offer and not properly withdrawn at the Acceptance Time), to the extent requested by the Company, Merger Sub shall provide for, and Parent shall cause Merger Sub to provide for, a Subsequent Offering Period of ten (10) Business Days; provided, however, that if Merger Sub is required to exercise the Top-Up Option pursuant to Section 1.4(c), the Company Common Stockshall not have the right to request a Subsequent Offering Period; provided, further that the Company shall not have the right to request a Subsequent Offering Period if such Subsequent Offering Period would extend beyond the date that is five (5) Business Days prior to the Walk Away Date without the prior written consent of Parent (which consent may be withheld in its sole discretion). On Subject to the terms and subject to the conditions to the Offer that are set forth in this AgreementAgreement and the Offer, promptly after the Expiration Date, either Parent or shall cause Merger Sub shall to, and Merger Sub shall, accept for payment and purchase, pay for all Shares validly tendered and not properly withdrawn during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered during any Subsequent Offering Period and in any event in compliance with Rule 14d-11(c) promulgated under the date on which Exchange Act.
(e) Parent and Merger Sub expressly reserve the right to waive any of the Offer Conditions, to increase the Offer Price and/or to modify the other terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, do any of the following:
(i) reduce the number of Shares subject to the Offer;
(ii) reduce the Offer Price;
(iii) amend, change or waive the Minimum Tender Condition;
(iv) except as expressly provided in Section 1.1(b), extend or otherwise change the Expiration Date, except (A) as required by applicable Law (including for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof) or (B) in connection with an increase of the Offer Price;
(v) change the form of consideration payable in the Offer;
(vi) impose any condition to the Offer other than the Offer Conditions; or
(vii) otherwise amend, modify or supplement any of the Offer Conditions or the terms of the Offer in any manner adverse to holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub (as to consummate the case may be) first accepts shares for payment pursuant to Offer, the Offer (Merger or the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawother Transactions.
(bf) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall contain an offer to purchase and exchange and will (i) contain or incorporate by reference all or part of the Registration Statement an offer to purchase and a related letter of transmittal and summary advertisement and such other information or documents as required by Law (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, being referred to as the "“Offer Documents")”) and (ii) be in form reasonably satisfactory to the Company. The Company shall as promptly as practicable upon request of Parent, provide Parent and Merger Sub with all information concerning the Company that is required to be included in the Offer Documents. Parent and Merger Sub shall cause the Offer Documents to comply in all material respects with the requirements of applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the holders of Shares, 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, except that no covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent necessary such that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue the Offer Documents do not contain an untrue statement of a material misstatementfact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, material omission or otherwise)in light of the circumstances under which they are made, not misleading. Each of Parent and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable U.S. federal securities lawsLaws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given afforded a reasonable opportunity to review and comment upon the Offer Documents prior to their filing each time before they are filed with the SEC or dissemination and/or disseminated to holders of Shares (and the stockholders of Company and its counsel shall provide any comments thereon as soon as reasonably practicable, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the CompanyCompany and its counsel). Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel copies of any written comments (and orally, or telephonic notification of any oral comments), comments or other communications Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and or other communications, shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments. The comments or other communications, and shall provide the Company will advise with copies of all written responses and telephonic notification of any oral responses thereto of Parent or Merger Sub or their counsel, provided that Parent and Merger Sub promptly after it receives notice shall provide the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments or other communications and to provide comments on that response (to which reasonable and good faith consideration shall be given by Parent and Merger Sub).
(g) Unless this Agreement is terminated pursuant to Section 8.1, neither Parent nor Merger Sub shall terminate or withdraw the Registration Statement and any supplement or amendment that has been filed have become effective, Offer without the prior written consent of the issuance Company in its sole discretion, except that in the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination irrevocably and unconditionally terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering stockholders.
(h) The Offer Price shall be adjusted to reflect fully the effect of any stop orderreclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock effected by the suspension Company in accordance with the terms and conditions of this Agreement and occurring (or for which a record date is established) after the qualification date of this Agreement and prior to the CVR Certificates issuable payment by Merger Sub for the Shares validly tendered and not properly withdrawn in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 of this Agreement and none of the events set forth in Annex I hereto (the "Exchange Offer Conditions") shall have occurred and be existing, as promptly as practicable, but in no event later than the fifth business day from the date of this Agreement, Premier shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, including the rules and regulations promulgated thereunder (the "Exchange Act")), a tender offer for any and all Shares in exchange for the Offer Consideration and shall use reasonable best efforts to consummate the Offer. The obligation of Premier to accept for exchange and to exchange the Offer Consideration for any Shares tendered pursuant thereto will be subject only to the satisfaction of the conditions set forth in Annex I hereto. This Offer shall be made by means of a Prospectus/Offer to Exchange (the "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex I. Notwithstanding anything to the contrary in clause (iii) of Annex I hereto, Premier shall be required to make a reasonable determination that any of the events set forth in paragraphs (a) through (eh) of Annex I shall have occurred in order to refuse payment of the Offer Consideration for the tendered Shares or to terminate the Offer in connection with any purported failure to meet a condition specified in such paragraphs (a) through (h) of Exhibit A hereto Annex I.
(b) The Offer Consideration shall have occurred consist of: (x) the Cash Consideration, (y) the Stock Consideration, and (z) the Warrant Consideration. The Stock Consideration is equal to that number of shares of Premier Common Stock equal to the Exchange Ratio. "Exchange Ratio" means the quotient (rounded to the nearest 1/100,000) determined by dividing $0.25 by closing sales prices for Premier Common Stock as reported on The Nasdaq Stock Market, Inc. ("NASDAQ") as published in The Wall Street Journal or, if not published therein, in another authoritative source) for either (i) the fifteen (15) consecutive trading days (each, a "Trading Day") ending five Trading Days immediately preceding the Expiration Date (as defined below) or be existing(ii) the thirty (30) consecutive Trading Days ending twenty (20) Trading Days prior to the Expiration Date, as promptly as reasonably practicable but in no event later than ten business days after whichever yields the date fewer number of the public announcement shares of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission Premier Common Stock (the "SECPremier Average Price"). The obligations of Parent Class C Warrants and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer Class D Warrants shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable substantively in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company forms attached as Exhibits A and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counselB hereto, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Premier Laser Systems Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII and none of the events set forth in paragraphs Annex A (athe "OFFER CONDITIONS") through (e) or (h) of Exhibit A hereto shall have occurred or and be existingcontinuing, Purchaser shall, and Parent shall cause the Purchaser, to:
(i) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten business days Business Days after the date of the public announcement execution of this Agreement, Parent and Merger Sub shall commence ; and
(ii) cause the Offer within to remain open until the meaning twentieth Business Day after such commencement of the applicable rules Offer (the "INITIAL EXPIRATION DATE").
(b) The obligation of the Purchaser to accept for payment, purchase and regulations pay for any Shares validly tendered pursuant to the Offer on or prior to the Initial Expiration Date and not withdrawn prior to such Initial Expiration Date shall be subject only to the satisfaction or waiver of the Offer Conditions, specifically including the Offer Condition that at least that number of shares of Company Common Stock, which, together with Shares beneficially owned by Parent, Purchaser and their direct and indirect Subsidiaries, shall represent at least a majority of the total issued and outstanding shares of Company Common Stock on a Fully-Diluted Basis shall have been validly tendered and not withdrawn prior to 12:00 p.m. (midnight) New York City time, on the Expiration Date (the "MINIMUM CONDITION"). Purchaser shall, and Parent shall cause Purchaser, to accept for payment and pay for Shares tendered pursuant to the Offer, subject only to the satisfaction of each of the conditions set forth in Annex A (the "Offer Conditions"). At the Company's request, Purchaser will, and Parent shall cause Purchaser to, extend the Offer after the Initial Expiration Date for one or more periods not to exceed an aggregate of twenty Business Days if the Offer Conditions have not been satisfied at the Initial Expiration Date. Subject to the prior satisfaction of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, consummate the Offer in accordance with its terms and accept for payment all Shares tendered and not withdrawn by 9:00 a.m. Eastern time on the next Business Day after the expiration of the Offer. Purchaser expressly reserves the right to waive any Offer Condition, or increase the Per Share Amount payable in the Offer and to make any other changes in the terms and conditions of the Offer. However, without the consent of the Company, Purchaser shall not, and Parent shall not permit Purchaser to:
(i) decrease the Per Share Amount or change the form of consideration payable in the Offer;
(ii) reduce the number of Shares subject to the Offer;
(iii) impose conditions to the Offer in addition to the Offer Conditions; or
(iv) change the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Purchaser may, without the consent of the Company:
(i) extend the Offer for one or more periods of not more than fifteen Business Days each beyond the Initial Expiration Date, if, at any scheduled expiration of the Offer, any of the Offer Conditions shall not be satisfied or waived; or
(ii) extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay foror the staff thereof, any shares of Company Common Stock tendered pursuant applicable to the Offer are subject to (provided that Purchaser shall keep the conditions set forth in Exhibit A. The initial expiration date Company reasonably informed of Purchaser's or Parent's contact with the Offer shall be SEC or the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject staff thereof with respect to the Offer, (ii) reduce the Offer Price to ). The Per Share Amount shall be paid pursuant net to the Offerseller in cash, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On upon the terms and subject to the conditions to of the Offer that are set forth in this Agreement(the "MERGER CONSIDERATION"). Purchaser shall, and Parent shall cause Purchaser to, pay for all Shares validly tendered and not withdrawn promptly after following the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares acceptance of Shares for payment pursuant to the Offer 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 Securities Exchange Act of 1934, as amended (the "Acceptance DateEXCHANGE ACT"). Purchaser may extend the Offer after the acceptance of Shares thereunder for a further period of time by means of a subsequent offering period ("SUBSEQUENT OFFERING PERIOD") under Rule 14d-11 promulgated under the Exchange Act of not more than twenty Business Days to meet the objective that there be validly tendered, all shares in accordance with the terms of Company Common Stock validly tendered the Offer, prior to the expiration of the Offer (as so extended), and not withdrawn pursuant to the Offer that a number of Shares which, together with Shares then beneficially owned by Parent and Merger Sub are permitted to accept Purchaser and pay for under applicable lawtheir direct and indirect Subsidiaries, represents at least 90% of the then outstanding Shares on a Fully-Diluted Basis.
(bc) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Purchaser and Parent shall file with the SEC a Tender Offer Statement on Schedule TO (together with all exhibits, amendments and supplements thereto, the "SCHEDULE TO") with respect to the Offer. The Schedule TO shall comply in all material respects with the provisions of the Exchange Act, the rules and regulations promulgated thereunder and all other applicable Laws, and shall contain or shall incorporate by reference an offer to purchase relating to the Offer (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 such other documents, together with all exhibits, supplements and amendments thereto, being referred to herein collectively as the "OFFER DOCUMENTS"). Each of Parent, Purchaser and the Company shall correct promptly any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect, and Parent and Merger Sub shall file Purchaser further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and cause the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which . Parent and Purchaser shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and give the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents prior to their filing such documents being filed with the SEC or dissemination disseminated to the stockholders holders of the CompanyShares. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Purchaser shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing counsel with any written comments (and orally, any oral comments), that Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with provide the Company and its counsel, or counsel with a reasonable opportunity to participate in the response of the Parent and Merger Sub and their counsel, respectively, prior Purchaser to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Naturex S.A.)
The Offer. (a) Subject to Parent shall cause Acquisition Sub to, and Acquisition Sub shall, commence (within the conditions meaning of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of Rule 14d-2 under the events set forth in paragraphs (aExchange Act) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable but after the date of this Agreement; provided, however, that Acquisition Sub shall not be required to commence the Offer on a particular date following the date of this Agreement if any of the conditions set forth in no event later than ten clauses “(a),” “(b),” “(c),” “(f)” and “(g)” of Annex I shall not be satisfied as of such date (treating references to the “Acceptance Time” in clauses “(a)” through “(c)” of Annex I as references to such date). Without limiting the preceding sentence, if the Company: (i) shall have reasonably cooperated with Parent in connection with the Offer and the preparation of the Offer Documents (as defined in Section 1.2(e)), including by promptly providing any comments to Parent from the advisers to the Company and the advisers to the Special Committee; and (ii) shall be prepared to file with the SEC, and to disseminate to holders of Company Securities, the Schedule 14D-9 (as defined in Section 1.3(b)) on the date Parent files the Offer Documents with the SEC, then Parent shall cause Acquisition Sub to, and Acquisition Sub shall, commence the Offer within 10 business days after the date of the public announcement of this Agreement. (The date on which Acquisition Sub commences the Offer, Parent and Merger Sub shall commence the Offer within the meaning of Rule 14d-2 under the applicable rules Exchange Act, is referred to in this Agreement as the “Offer Commencement Date.”) The Offer will be a single offer made concurrently in the United States and regulations the Republic of Korea.
(b) The obligation of Acquisition Sub to accept for payment (and the Securities and Exchange Commission (the "SEC"). The obligations obligation of Parent and Merger to cause Acquisition Sub to accept for payment, ) Company Securities validly tendered (and pay for, any shares of Company Common Stock tendered not withdrawn) pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not subject to: (i) reduce the number of shares of Company Common Stock subject to condition (the Offer, “Minimum Condition”) that there shall be validly tendered (iiand not withdrawn) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, both: (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares number of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made Shares (including the Registration Statement)Company Shares underlying Company ADSs) that, together with any supplements Company Shares (including Company Shares underlying Company ADSs) owned by Parent or amendments theretoAcquisition Sub immediately prior to the Acceptance Time and the New Shares to be issued pursuant to Section 1.1, represents more than 50% of the "Offer Documents"Outstanding Share Number (as defined below). Each ; and (B) at the election of Parent, Merger Sub and all of the Company shall promptly correct any information provided Securities owned, of record or beneficially, by it for use in the Offer Documents if and each Person identified on Schedule 1.2(b) who executed an Agreement to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Tender as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act date (and as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, set forth on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt signature page) of such comments Agreement to Tender (regardless of whether or not such Agreement to Tender is in effect); and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(cii) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.the
Appears in 1 contract
Sources: Share Allocation and Tender Offer Agreement (Ebay Inc)
The Offer. (a) Subject Provided that no event shall have occurred that gives rise to the conditions of a right to terminate this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof VIII, Buyer shall (and none Parent shall cause Buyer to) commence (within the meaning of Rule 14d-2 promulgated under the 1934 Act) the Offer to purchase all of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, issued and outstanding Shares at a price per share equal to the Offer Consideration as promptly as reasonably practicable after the date of this Agreement but in no event later than ten business days after the tenth (10th) Business Day following the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub Buyer to accept for payment, and pay for, any shares of Company Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer are shall be subject to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A. Annex I (the “Offer Conditions”). The initial expiration date on which Bu▇▇▇ ▇ommences the Offer is referred to as the “Offer Commencement Date”.
(b) In accordance with the terms and conditions of this Agreement and subject to the satisfaction or waiver (to the extent such waiver is not prohibited by applicable Law) of the Offer Conditions, Buyer shall (and Parent shall cause Buyer to), at or promptly following the Expiration Time (but in any event within three (3) Business Days thereafter), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and, promptly following the Expiration Time (but in any event within three (3) Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the 1934 Act) thereafter), pay (by delivery of funds to the depositary for the Offer) for all Shares validly tendered and not properly withdrawn pursuant to the Offer as of the Acceptance Time (the “Closing”). The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. The Offer Consideration payable in respect of each Share pursuant to the first sentence of this Section 2.01(b) shall be paid (via the 25th business day depositary for the Offer) to the seller of such Share in cash, without interest, net of any applicable withholding Tax pursuant to Section 2.10, on the terms and subject to the conditions of this Agreement.
(c) Buyer expressly reserves the right at any time to, in its sole discretion, waive, in whole or in part, any of the Offer Conditions and to make any change in the terms of, or conditions to, the Offer; provided, that, without the prior written consent of the Company, Buyer shall not (and Parent shall cause Buyer not to):
(i) waive or change the Minimum Condition (except to the extent permitted in paragraph (A) of An▇▇▇ ▇);
(ii) decrease the Offer Consideration;
(iii) change the form of consideration to be paid in the Offer;
(iv) decrease the maximum number of Shares sought to be purchased in the Offer;
(v) extend or otherwise change the Expiration Time, except as otherwise expressly provided in this Agreement; or
(vi) impose additional Offer Conditions or otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a manner adverse to the holders of Shares.
(d) The Offer shall initially expire at 9:00 a.m. (New York City time), or at such other time as the Parties may mutually agree, on the date that is the later of (i) twenty-one (21) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the 1934 Act) following the commencement of the Offer and (ii) six (6) Business Days after the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent EGM (such initial expiration date and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms time of the Offer, except thatthe “Initial Expiration Time”) or, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce if the Offer Price to be paid has been extended pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined and in Exhibit Aaccordance with Section 2.01(e), add the date and time to which the conditions set forth Offer has been so extended (the Initial Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Expiration Time”).
(e) Subject to Article VIII, Buyer may or shall (in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stockwhich case Parent shall cause Buyer to), (iv) except as provided below in this Section 1.01(a)applicable, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions of the Offer as follows:
(i) Buyer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (Band Parent shall cause Buyer to) extend the Offer for any the minimum period as required by any rule, regulation, interpretation or position of the SEC SEC, the staff thereof or the NASDAQ applicable to the Offer; ;
(ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not either been (A) satisfied or (CB) waived by Buyer (to the extent such waiver is not prohibited under this Agreement and applicable Law), then Buyer shall (and Parent shall cause Buyer to) extend the Offer for a "subsequent offering on one or more occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time), on the last Business Day of such period" ) (or such other duration as provided may be agreed to by Rule 14d-11 under Buyer and the Exchange ActCompany) for a period of three to twenty business days in order to acquire permit the satisfaction of such Offer Condition(s); provided, that if Buyer determines in good faith, after consultation with its outside legal counsel, that at least 90% any then-scheduled Expiration Time, the Offer Condition set forth in paragraph (B) or paragraph (I) of Annex I is not reasonably likely to be satisfied within such ten (10) Business Day extension period, then Buyer may extend the outstanding shares Offer on such occasion for periods of up to twenty (20) Business Days; provided further, that (x) Buyer shall not be required to extend the Offer to a date later than the End Date (as the End Date may be extended by mutual written consent of Parent and the Company Common Stockpursuant to Section 8.01(b)(i)) and (y) if the Minimum Condition is then-unsatisfied, but all other Offer Conditions are then-satisfied or waived (other than any Offer Condition set forth in paragraph (F), (G) or (H) of Annex I, which do not need to be then-satisfied or waived in order for this clause (y) to be triggered), Buyer shall not be required to (but may elect to) extend the Offer on more than three (3) occasions in consecutive periods of up to ten (10) Business Days each (with each such period to end at 5:00 p.m. (New York City time) on the last Business Day of such period) (or such other duration as may be agreed to by Buyer and the Company); or
(iii) Buyer may extend the Offer to such other date and time as may be mutually agreed by Pa▇▇▇▇ ▇nd the Company in writing.
(f) Following the Expiration Time, Buyer shall (and Parent shall cause Buyer to) (and the Offer Documents shall so indicate) provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 promulgated under the 1934 Act of five (5) Business Days (calculated in accordance with Rule 14d-1(g)(3) promulgated under the 1934 Act), in which event Buyer shall (and Parent shall cause Buyer to) (A) give the required notice of such Subsequent Offering Period and (B) immediately accept for payment and promptly pay for all Shares validly tendered during such Subsequent Offering Period (in each case, within three (3) Business Days of tender thereof (calculated as set forth in Rule 14d-1(g)(3) promulgated under the 1934 Act)). On The final date on which Shares tendered during the terms Subsequent Offering Period are accepted for payment and paid for shall be referred to herein as the “Subsequent Closing Date.”
(g) The Offer may not be terminated prior to the Initial Expiration Time or the then-scheduled Expiration Time (as the same may be extended pursuant to (and subject to the conditions limits on required extensions contained in) Section 2.01(e)) unless this Agreement is validly terminated pursuant to Article VIII. If this Agreement is validly terminated pursuant to Article VIII, Buyer shall (and Parent shall cause Buyer to) promptly (and in any event within twenty-four (24) hours following such valid termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement by Buyer prior to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept acceptance for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares payment for payment Shares tendered pursuant to the Offer Offer, Buyer shall (the "Acceptance Date")and Parent shall cause Buyer to) promptly return, and shall cause any depositary acting on behalf of Buyer to return, in accordance with applicable Law, all shares of Company Common Stock validly tendered and not withdrawn pursuant Shares to the Offer that Parent and Merger Sub are permitted to accept and pay for registered holders thereof. Nothing in this Section 2.01(g) shall affect any termination rights under applicable lawArticle VIII.
(bh) As promptly soon as reasonably practicable but in no event later than ten business days after on the date of the public announcement of this AgreementOffer Commencement Date, the Company Parent and Buyer shall cause the CVR Trust (as defined in Section 5.16 (a)i) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement an offer to purchase and a related letter of transmittal and summary advertisement other appropriate ancillary offer documents required to be included therein (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any amendments or supplements or amendments thereto and including exhibits thereto, the "“Offer Documents")”) and (ii) cause the Offer Documents to be disseminated to holders of Shares to the extent required by applicable United States federal securities Laws and any other applicable Law. The Company shall promptly furnish to Parent and Buyer all information concerning the Company required by the 1934 Act and applicable Law, or as reasonably requested by Parent, to be set forth in the Offer Documents. Each of ParentParent and Buyer, Merger Sub on the one hand, and the Company shall Company, on the other hand, agrees promptly to correct any information provided by it for use inclusion or incorporation by reference in the Schedule TO and the Offer Documents if and to the extent that such information shall have originally been become (or shall have become known to be) false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), respect. Parent and each of Parent, Merger Sub and the Company Buyer shall take all steps necessary to amend or supplement the Offer Documents and use their reasonable best efforts to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by or deemed advisable under applicable United States federal securities lawsLaws and any other applicable Law. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents prior to their filing each time before any such document is filed with the SEC or dissemination to the stockholders of the Company. SEC, and Parent and Merger Sub, on the one hand, Buyer shall consider in good faith including in such document (and the Company on behalf of the CVR Trust, on the other hand, shall provide to any amendments thereto) all comments reasonably proposed by the Company and its counsel, or . Parent and Merger Sub Buyer shall provide the Company and its counsel with (A) any comments or other substantive communications, whether written or oral, that Parent and Buyer or their counsel, respectively, counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Schedule TO or the Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in writing any written the response of Parent and Buyer to those comments and to provide comments on that response (and orally, any oral commentsParent and Buyer shall consider in good faith including all comments reasonably proposed by the Company and its counsel), Parent, Merger Sub including by participating with Parent and Buyer or their counsel, on counsel in any substantive discussions or meetings with the one hand, SEC or other Governmental Authorities to the Company on behalf of extent such participation is not prohibited by the CVR Trust, on SEC or other Governmental Authorities. In the other hand, may receive event that Parent or Buyer receives any comments from the SEC or its staff with respect to the Schedule TO or the Offer Documents Documents, such Party shall use its reasonable best efforts to respond as promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior as practicable to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior subject to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC andforegoing consultation rights, to the extent required by applicable law, disseminated Company with respect to the stockholders of the Companysuch response.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that, had the Offer referred to below been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex A hereto, subject to the last sentence of this Section 1.1(a), as promptly as practicable (but in any event not later than March 6, 2000), Parent will cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), the Offer, whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, net to the seller in cash, without interest (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 for any applicable withholding tax), PROVIDED, HOWEVER, that Parent may designate another direct or indirect subsidiary of Parent as the bidder in the Offer (within the meaning of Rule 14d-1(g) under the Exchange Act, in which case references herein to Purchaser will be deemed to apply to such subsidiary, as applicable). The obligation of Parent to cause Purchaser to consummate the Offer and to accept for payment and to promptly pay for Shares validly tendered in the Offer and not validly withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in Annex A hereto (the "OFFER CONDITIONS").
(b) Subject to the requirements of applicable Law, Purchaser expressly reserves the right to waive any of the conditions to the Offer and to make any changes in the terms or conditions of this Agreement and provided the Offer; PROVIDED, HOWEVER that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none without the prior written consent of the events set forth Company, Purchaser will not, and Parent will cause Purchaser not to, (i) decrease or change the form of the Per Share Amount, (ii) decrease the number of Shares sought in paragraphs the Offer, or (aiii) through amend or waive the Minimum Condition (eas defined in Annex A hereto) or (h) of Exhibit A hereto shall have occurred impose conditions other than the Offer Conditions on the Offer. In the event that any Offer Condition is not satisfied or be existing, as promptly as reasonably practicable but in no event later than ten business days after waived at the time that the expiration date of the public announcement Offer (as such date may from time to time be extended, the "EXPIRATION DATE") would otherwise occur, Purchaser may from time to time extend the Expiration Date (but not beyond the Outside Date), or amend any term of this Agreement, Parent and Merger Sub shall commence the Offer within in any manner not materially adverse to the meaning Stockholders. In the event that at least a majority but less than 90% of the Voting Securities, calculated on a fully diluted basis, have been validly tendered and not withdrawn on the scheduled or extended expiration date of the Offer, Purchaser shall, unless otherwise notified by the Company in writing, accept and purchase all of the Shares tendered in the initial offer period and may notify Stockholders of Purchaser's intent to provide a "subsequent offering period" for tender of at least 90% of the Shares pursuant to Rule 14d-11 of the Exchange Act. The Offer may be extended in connection with an increase in the consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations Assuming the prior satisfaction or waiver of the Offer Conditions, Parent and Merger Sub will cause Purchaser to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify accordance with the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly soon as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, Expiration Date or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyextension thereof.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1 and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Appendix A hereto to this Agreement shall have occurred or and be existing, as promptly as reasonably practicable but in no event later than within ten business days Business Days after the date of the public announcement of the execution and delivery of this Agreement, Parent and Merger Sub Purchaser shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Exchange Act) a cash tender offer to acquire any and regulations of all Shares (including the Securities related Stock Purchase Rights) at the Offer Price. Subject to the Minimum Condition and Exchange Commission (subject to the "SEC"). The obligations of Parent other conditions set forth in Appendix A to this Agreement, Purchaser shall consummate the Offer in accordance with its terms and Merger Sub to accept for payment, payment and pay for, any shares of Company Common Stock for Shares tendered pursuant to the Offer are as soon as Purchaser is legally permitted to do so under applicable law. The Offer shall be made by means of the Offer to Purchase and shall be subject only to the Minimum Condition and the other conditions set forth in Exhibit A. The initial expiration date Appendix A to this Agreement and shall reflect the other terms set forth in this Agreement. Purchaser shall not amend or waive the Minimum Condition and shall not decrease the number of Shares sought in the Offer, change the form of or decrease the amount of consideration to be paid, impose conditions to the Offer shall be in addition to those set forth in Appendix A, make any other change in the 25th business day following Offer which is materially adverse to the commencement of Company's stockholders or extend the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer except as so extended, shall also be defined herein as an "Expiration Date"provided in this Agreement). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company. If on the expiration date of the Offer (the "Expiration Date") as initially scheduled, Merger Sub which shall not (i) reduce be twenty Business Days after the number of shares of Company Common Stock subject date the Offer is commenced, all conditions to the OfferOffer are not then satisfied or waived, (ii) reduce the Offer Price Purchaser may, from time to be paid pursuant to the Offertime, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a)its sole discretion, extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockExpiration Date. Notwithstanding the foregoing, Merger Sub Purchaser shall extend the Offer from time to time until December 31, 2000 if, and to the extent that, at the Expiration Date as initially scheduled, or any extension thereof, the conditions to the Offer set forth in Appendix A to this Agreement have not been satisfied or waived. Furthermore, if at December 31, 2000, the termination of the waiting period under the HSR Act shall be the only condition to the Offer which is not then satisfied or waived, Purchaser shall extend the Expiration Date from time to time until February 28, 2001. In addition, Purchaser may (but shall not increase the amount it offers to pay per Share in the Offer, and the Offer may be obligated to)extended to the extent required by law in connection with such increase, in each case without the consent of the Company and in its sole and absolute discretionCompany. In addition, (A) from time to time Purchaser may extend the Offer if, at after the scheduled Expiration Date, any acceptance of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer Shares thereunder for a "further period of time by means of a subsequent offering period" (as provided by period under Rule 14d-11 under the Exchange Act, of not more than twenty Business Days to meet the objective (which is not a condition to the Offer) for that there be validly tendered, in accordance with the terms of the Offer, and not withdrawn prior to the Expiration Date (as so extended) a period number of three to twenty business days in order to acquire Shares which, together with Shares then owned by Parent and Purchaser, represents at least 90% ninety percent of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawShares.
(b) As promptly as reasonably practicable but in no event later than ten business days after On the date of the public announcement of this AgreementOffer is commenced, the Company Parent and Purchaser shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration tender offer statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant Schedule TO with respect to the Offer. The Registration Statement Schedule TO will include include, as exhibits, the Offer to Purchase and a preliminary prospectus containing the information required under Rule 14d-4(bform of letter of transmittal and summary advertisement.
(c) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file Purchaser will take all steps necessary to cause the Offer Documents to be filed with the SEC, SEC and cause to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by applicable federal securities laws. Parent and Purchaser, a Tender Offer Statement on Schedule TO with respect to the Offerone hand, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which Company, on the Offer other hand, will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company shall respect. Purchaser will take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable the opportunity to review and comment upon the Offer Documents prior to their filing initial Schedule TO before it is filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Purchaser will provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel in writing with any comments or other communications, whether written comments (and orallyor oral, any oral comments), that Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents Documents, promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companycommunications.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided The Offer.
(i) Provided that this Agreement shall not have been terminated in accordance with its terms pursuant Section 8.1, Merger Sub shall commence and Purchaser shall cause Merger Sub to Article VII hereof and none commence (within the meaning of Rule 14d-2 under the events set forth in paragraphs (aExchange Act) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, the Offer as promptly as reasonably practicable after the date hereof, but in no event later than ten five (5) business days after (as defined in Rule 14d-1(g)(3) of the Exchange Act) from the date of the public announcement of this Agreement, Parent and Merger Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th remain open at least twenty (20) business day following the days from commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Initial Expiration Date"). Parent The obligation of Merger Sub to accept, and Purchaser to cause Merger Sub to accept, for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) shall be subject only to the satisfaction or waiver by Purchaser or Merger Sub of the following conditions: (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Common Stock which, together with any shares of Common Stock then owned by Purchaser or Merger Sub, represents at least 53% of the shares of Common Stock Outstanding (the "Minimum Condition"); and (ii) the other conditions set forth in Annex A hereto. Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall, and Purchaser shall cause Merger Sub to, consummate the Offer in accordance with its terms and shall accept for payment and pay for all Shares tendered and not withdrawn at the earliest time permitted by applicable law. The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that contains the terms set forth in this Agreement, the Minimum Condition and only the other conditions set forth in Annex A hereto. Merger Sub expressly reserve reserves the right to waive any condition of such conditions, to increase the Offer or modify Price and to make any other changes in the terms of the Offer; provided, except thathowever, without the written consent of the Company, that Merger Sub shall not, and Purchaser shall cause Merger Sub not (i) reduce the number of shares of Company Common Stock subject to the Offerto, (ii) reduce decrease the Offer Price to be paid pursuant to the OfferPrice, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, extend the Offer beyond the Initial Expiration Date, except to the extent expressly permitted pursuant to this Section 1.1(a), decrease the number of Shares sought in the offer, impose additional conditions to the Offer, purchase any Shares pursuant to the Offer that when added to Shares owned by Purchaser and its Affiliates would represent less than the Minimum Condition or (vi) otherwise amend any other term or condition of the Offer in any manner adverse to the holders of the Shares, in each case without the prior written consent of the Company Common Stock(such consent to be authorized by the Board or a duly authorized committee thereof). Notwithstanding anything to the foregoingcontrary contained in this Agreement, but subject to the parties' respective termination rights under Section 8.1, Merger Sub may (but shall not be obligated to)may, in its discretion and without the consent of the Company and in its sole and absolute discretionCompany, prior to the termination of this Agreement, (Ai) from time to time extend the Offer if, at any scheduled expiration of the scheduled Expiration Date, Offer any of the conditions of to Merger Sub's obligation to accept Shares for payment (including without limitation the Minimum Condition) shall not be satisfied or waived, extend the Offer shall beyond the then applicable expiration date by one or more periods of not have been satisfied less than five (5) business days per extension, not to exceed an aggregate period of thirty (30) business days for all such extensions, to permit such condition to be satisfied, or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (Bii) extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the SEC SEC, or the staff thereof, applicable to the Offer; , or (Ciii) if, at any scheduled expiration of the Offer, the number of shares of Common Stock that shall have been validly tendered and not withdrawn pursuant to the Offer, together with any shares of Common Stock then owned by Purchaser or Merger Sub satisfies the Minimum Condition but represents less than 90% of the shares of Common Stock Outstanding, extend the Offer for a "subsequent offering period" (as provided by in Rule 14d-11 under the Exchange Act) for a an additional period of three (3) to twenty (20) business days in order to acquire at least 90% days, or until such earlier date as the number of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock that shall have been validly tendered and not withdrawn pursuant to the Offer that Parent and Offer, together with any shares of Common Stock then owned by Purchaser or Merger Sub represents 90% of the shares of Common Stock Outstanding. Upon the written request of the Company, Purchaser shall cause Merger Sub to extend the Offer for one or more periods not to exceed an aggregate of twenty (20) business days, if all of the conditions of the Offer are permitted not satisfied, but Company believes that such conditions are reasonably capable of being satisfied in such period. Notwithstanding anything to accept and pay for the contrary contained in this Agreement, but subject to the parties' respective termination rights under Section 8.1, if all conditions to the Offer have been satisfied other than the condition set forth in paragraph (k) of Annex A, the then applicable lawexpiration date of the Offer shall be extended by one or more periods of not less than five (5) business days per extension (without the requirement of consent from any party hereto), until the earlier of (i) the satisfaction of the condition set forth in paragraph (k) of Annex A or (ii) November 30, 2007.
(bii) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent Purchaser and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall contain or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments and supplements thereto, the "Offer Documents"). Neither the Schedule TO nor any information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9 will, at the respective times the Schedule TO, the Schedule 14D-9, or any amendments or supplements thereto, are filed with the SEC or are first published, sent or given to stockholders of the Company, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading. The Schedule TO will, when filed by Merger Sub with the SEC, comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. Purchaser and Merger Sub shall cause the Offer Documents to be disseminated to the Company's stockholders, holders of the Shares as and to the extent required by applicable federal securities lawsLaws. Purchaser and Merger Sub, a Tender Offer Statement on Schedule TO with respect to the Offerone hand, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which Company, on the Offer other hand, will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and to will cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to holders of the Company's stockholdersShares, in each case as and to the extent required by or deemed advisable under applicable federal securities lawsLaws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing Schedule TO before it is filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent In addition, Purchaser and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall Sub agree to provide to the Company and its counselcounsel with any comments, whether written or Parent and Merger Sub and their counseloral, respectively, in writing any written comments (and orally, any oral comments), Parent, that Purchaser or Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall to consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Compudyne Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms Article 8, and that no event shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to Article VII hereof and none any of the events conditions set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAnnex A, as promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement5:30 p.m. Eastern Daylight Savings time on July 28, 2009, Parent shall cause Merger Sub to commence, and Merger Sub shall commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations Securities Exchange Act of 1934, as amended (the “Exchange Act” )), the Offer. In the Offer, each Share accepted by Merger Sub in accordance with the terms of the Securities Offer shall be exchanged for the right to receive from Merger Sub the Offer Price. Parent shall cause Merger Sub to accept for payment, and Exchange Commission (Merger Sub shall accept for payment, all Shares which have been validly tendered and not withdrawn pursuant to the "SEC")Offer as soon as practicable following the Expiration Date. The obligations Notwithstanding the above, the obligation of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock for all Shares tendered pursuant to the Offer are shall be subject (x) to the condition that the number of Shares validly tendered and not withdrawn shall be at least the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA (the “Minimum Condition” ), and (y) to the other conditions set forth in Exhibit Annex A. The initial expiration conditions to the Offer set forth in Annex A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to the following sentence. Merger Sub expressly reserves the right to increase the amount of consideration payable in the Offer and to waive any condition of the Offer, except the Minimum Condition; provided that, Merger Sub, at its sole option, may waive such Minimum Condition (i) if the number of Shares validly tendered and not withdrawn shall be at least equal to the difference between (x) the minimum number of Shares required to approve this Agreement, the Merger and the other transactions contemplated herein pursuant to the organizational documents of the Company and the FBCA, less (y) the number of Shares subject to Support Agreements or (ii) with the prior written consent of the Company. The failure of Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Without the prior written consent of the Company, Merger Sub shall not decrease the amount of consideration payable in the Offer or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or reduce the time period during which the Offer shall remain open. The Company agrees that no Shares held by the Company or any of its Subsidiaries will be tendered in the Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall (i) file or cause to be filed with the SEC a combined Schedule 13E-3 and Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto, the “Schedule TO”) and related Offer to Purchase, form of letter of transmittal and summary advertisement and other ancillary Offer documents and instruments pursuant to which the Offer will be made (collectively, and including any supplements or amendments thereto, the “Offer Documents”) and (ii) cause the Offer Documents to be disseminated to the holders of Shares as and to the extent required by applicable Law. The Company shall promptly furnish to Parent and 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 Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of all material disclosure relating to (i) the company financial advisor ▇▇▇▇▇ & Company LLC (including the amount of fees and other consideration that ▇▇▇▇▇ & Company LLC will receive upon consummation of or as a result of the Offer and the Merger, and the conditions therefor), (ii) the financial advisor ▇▇▇▇▇▇▇ & Company (including the amount of fees and other consideration that ▇▇▇▇▇▇▇ & Company shall receive in connection with the opinion referred to in Section 4.20), (iii) the opinions of each of ▇▇▇▇▇ & Company LLC and ▇▇▇▇▇▇▇ & Company referred to in Section 4.20 and (iv) the information that formed the basis for rendering each of such opinions, subject to the approval of the form of such disclosure by ▇▇▇▇▇ & Company LLC and ▇▇▇▇▇▇▇ & Company, respectively, such approval not to be unreasonably withheld or delayed. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law. Parent and Merger Sub shall use their reasonable best efforts to cause the 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 soon as reasonably practicable and as and to the extent required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the 25th business day Schedule TO and the Offer Documents each time before any such document is filed with the SEC, and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Sub shall provide the Company and its counsel with (i) any written comments or other communications, and shall inform them of any oral comments or other communications, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given).
(c) Subject to the terms and conditions thereof, the Offer shall remain open until at least midnight, New York City time, on the twentieth Business Day (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of date the Offer is commenced (the initial "“Expiration Date," ” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "“Expiration Date"”). Parent and ; provided, however, that Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not shall: (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer iffor one or more periods of up to 20 Business Days each, the length of each such period to be determined by Merger Sub in its sole discretion, if at the scheduled Expiration Date, Date any of the conditions of the Offer Offer, including the Minimum Condition and the conditions and requirements set forth in Annex A, shall not have been satisfied or waived waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; , and (Bii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer; or (C) . Merger Sub may, from time to time, extend the Offer for a "subsequent offering period" period of no more than 20 days in the aggregate, if at the scheduled Expiration Date less than 80% of the number of Shares then outstanding less the number of shares held by persons subject to Support Agreements (the “Support Agreement Shares”) have been validly tendered and not withdrawn. Notwithstanding the above, in no event shall Merger Sub be required to, or shall Parent be required to cause Merger Sub to, extend the Offer beyond the Outside Date (as provided by Rule 14d-11 hereinafter defined). In no event shall Merger Sub extend the Offer beyond the Outside Date without the consent of the Company. Parent and Merger Sub shall comply with the obligations respecting prompt payment and announcement under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% , and, without limiting the generality of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreementforegoing, promptly after the Expiration Date, either Parent or Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment payment, and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date")pay for, all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay promptly following the acceptance of such Shares for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") payment pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing terms and subject to the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement conditions of the OfferOffer and this Agreement. This paragraph shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent and or Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein terminate this Agreement pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanyArticle VIII.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Bankrate, Inc.)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth specified in paragraphs clause (a) through (e) or (hiii) of Exhibit A hereto ----------- ------------ Annex I shall have occurred or and then be existingcontinuing, as promptly as reasonably practicable practical ------- after the date hereof, but in no event later than ten the sixth business days day after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall cause Purchaser to commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act) the Securities and Exchange Commission (Offer at the "SEC")Offer Price. The obligations obligation of Parent and Merger Sub Purchaser to consummate the Offer, to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject to the satisfaction of the conditions set forth in Exhibit A. Annex I. The initial expiration date of the Offer ------- shall be the 25th twentieth business day following commencement (within the commencement meaning of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 14d-2 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common StockOffer. On the terms Parent shall cause Purchaser to, and Purchaser shall, subject to the conditions to the Offer that are set forth provided in this AgreementAnnex I, promptly after the Expiration Date, either Parent or Merger Sub shall accept ------- for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent as soon as practicable after such expiration date and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no any event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file compliance with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") obligations respecting prompt payment pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b14e-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 net to the seller in cash, without interest, subject to any applicable withholding taxes.
(b) Purchaser reserves the right to (i) waive any of the conditions set forth in Annex I (other than the Minimum Condition and the condition relating to ------- the expiration of the waiting period under the HSR Act), (ii) increase the price per Share payable in the Offer, and (iii) make any other changes in the terms of the Offer; provided, however, 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, (b) decreases the price per Share payable pursuant to the Offer, (c) changes the form of consideration to be paid for the Shares pursuant to the Offer, (d) imposes conditions to the Offer in addition to the conditions set forth in Annex I, (e) waives the Minimum Condition or waives ------- the condition relating to the expiration of the waiting period under the HSR Act or (f) makes other changes in the terms and conditions of the Offer that are in any manner adverse to the holders of Shares. Without the prior written consent of the Company, Purchaser shall not extend the expiration date of commencement the Offer beyond the initial expiration date 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 I. As soon as ----------- ------- reasonably practicable on the date the Offer is commenced, Parent and Merger Sub Purchaser shall file with the SECSEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the ----------- Offer that (i) will comply in all material respects with the provisions of all applicable federal securities laws and (ii) will contain (including as an exhibit) or incorporate by reference the Offer to Purchase, a form of the 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"). Each of the Company, on the one --------------- hand, and Parent and Purchaser, on the other hand, agrees promptly to correct any information provided by it in writing for use in the Schedule TO or the Offer Documents if and to the extent that the Schedule TO or the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Purchaser further agree to take all steps necessary to cause the 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 and any other holder of securities issued by the Company's stockholdersCompany (if any), as and in each case to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which . Parent and Purchaser shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and provide the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 its counsel with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and any Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Purchaser shall promptly provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel in writing any written comments (with, and orallyconsult with the Company and its counsel regarding, any oral comments), comments Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, Schedule TO or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanyDocuments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided (i) Provided that this Agreement shall has not have been terminated in accordance with its terms pursuant to Article VII hereof ARTICLE VIII hereto, Purchaser will, and none of the events set forth in paragraphs Parent will cause Purchaser to, promptly (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than ten business days the tenth (10th) Business Day after (but not including) the date of the public announcement of this Agreement, Parent and Merger Sub shall ) commence the Offer (within the meaning of Rule 14d-2 under the applicable rules Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to purchase all Shares at the Offer Price; provided, however, that Purchaser shall not be required to commence the Offer (and regulations the ten (10) Business Day period referred to above shall be accordingly extended) if (i) the Company shall not have provided to Parent on a timely basis all information reasonably requested by Parent in connection with the preparation of the Securities Offer Documents or the Company shall not have reviewed and Exchange Commission provided comments to Parent on the Offer Documents on a timely basis, or (ii) the "SEC")Company is not prepared to, concurrently with such commencement, file with the SEC and disseminate to holders of Shares the Schedule 14D-9. The obligations of Purchaser (and of Parent and Merger Sub to cause Purchaser) to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are will be subject only to the satisfaction or waiver of those conditions set forth in Exhibit A. ANNEX I (the “Offer Conditions”). The initial expiration date of the Offer shall will be the 25th business twentieth (20th) Business Day following (and including the day following of) the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date")Offer. Parent and Merger Sub Purchaser expressly reserve reserves the right (but will not be obligated) at any time or from time to time in its sole discretion to waive any condition to the Offer Condition or modify or amend the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall Purchaser will not (i1) reduce decrease the number Offer Price or change the form of shares of Company Common Stock subject to the consideration payable in the Offer, (ii2) reduce decrease the Offer Price to be paid number of Shares sought pursuant to the Offer, (iii3) change amend or waive the Minimum Tender Condition (as defined in Exhibit AANNEX I), (4) add to the conditions set forth in Exhibit A or on ANNEX I, (5) modify any condition the conditions set forth on ANNEX I in Exhibit A in any a manner adverse to the holders of Company Common StockShares, (iv6) extend the expiration date of the Offer except as provided below in this required or permitted by Section 1.01(a), extend the Offer, 1.1(a)(iii) or (v7) make any other change the form of consideration payable in the Offer terms or (vi) otherwise amend conditions of the Offer in any manner that is materially adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawShares.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.1, the Purchaser shall, and none Parent shall cause the Purchaser to, commence within the meaning of Rule 14d-2 under the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but Exchange Act the Offer in no event later than ten five business days after the initial public announcement of Parent's intention to commence the Offer. The Offer shall have a scheduled expiration date 20 business days following commencement of the public announcement Offer (the "Initial Expiration Date"). Notwithstanding any contrary provision of this Agreement, Parent and Merger Sub shall commence the Purchaser (i) if so requested by the Company at the direction of the Special Committee, will extend the Offer within for up to 20 business days in the meaning 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, (ii) 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 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 Purchaser shall not accept for payment any shares of Common Stock tendered pursuant to 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 defined in Annex I). Under no circumstances shall Parent or Purchaser waive the Minimum Condition. In addition to the Minimum Condition, the obligation of the Purchaser to accept for payment and pay for shares of Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Annex I hereto. Parent expressly reserves the right 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 set forth in Annex I hereto; or (v) make any other 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 rules withholding of taxes, be net to the seller in cash, upon the terms and regulations 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, all shares of Common Stock validly tendered pursuant to the Offer and not withdrawn, pursuant to applicable law.
(b) As soon as reasonably practicable on the date of commencement of the Offer, Parent shall file with the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not
(i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, 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 OfferOffer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, which including the exhibits thereto (together with all amendments and supplements thereto, the "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 Purchase") and exchange and will contain or incorporate by reference all or part forms of the Registration Statement and a related letter of transmittal and any summary advertisement (such the Schedule TO and 14D-1, the documents included therein pursuant to which Schedule 13E-3, the Offer will be made (including the Registration Statement)to Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). Each of Parent, Merger Sub the Purchaser and the Company shall 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 such information which shall have originally been become materially incorrect or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)misleading, and each of Parent, Merger Sub Parent and the Company shall Purchaser further agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 and the Schedule 13E-3 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so amended or supplemented corrected to be disseminated to the Company's stockholdersholders of shares of Common Stock, in each case as and to the extent required by or deemed advisable under applicable federal securities lawslaw. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effectiveThe Company, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto Special Committee and their respective counsel shall be given a the reasonable opportunity to review and comment upon on the Offer Documents and any amendments thereto prior to their the filing thereof with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Purchaser shall provide to promptly the Company and its counselCompany, or Parent and Merger Sub the Special Committee and their counsel, respectively, in writing respective counsel with a copy of any written comments (and orally, or telephonic notification of any oral comments), Parent, Merger Sub or their counsel, on the one hand, comments Parent or the Company on behalf of the CVR Trust, on the other hand, Purchaser may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments thereof. Parent and the Purchaser shall consult with provide the Company and its the Special Committee, and their respective counsel, or Parent and Merger Sub and their counsel, respectively, prior with a reasonable opportunity to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable participate in connection all communications with the Offer for offering or sale in SEC and its staff, including any jurisdiction. Ifmeetings and telephone conferences, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub Transactions or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companythis Agreement.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Pinault Printemps Redoute Sa Et Al)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit Annex A hereto shall have occurred or be existing, Subsidiary, as promptly as reasonably practicable practicable, but in no any event later than ten within five business days after the date of the public announcement of this AgreementPlan of Merger, Parent and Merger Sub shall commence a tender offer (the "Offer") for all outstanding Shares at a price of $5.00 per Share, net to the seller in cash. Assuming the prior satisfaction or waiver of the conditions to the Offer within set forth in Annex A hereto, Subsidiary will accept for payment all Shares validly tendered pursuant to the meaning Offer, and not withdrawn, as soon as legally permissible and shall pay for all such Shares as soon as practicable thereafter. The Offer initially shall expire on the twentieth business day after its commencement; provided, however, that Subsidiary may, without the consent of Target, (i) extend the Offer (on one or more occasions) beyond the scheduled expiration date if at any such date any of the applicable rules and regulations conditions to Subsidiary's obligation to purchase Shares shall not be satisfied or waived, until such time as such conditions are satisfied or waived, or (ii) extend the Offer to the extent required by any rule or regulation of the Securities and Exchange Commission (the "SECCommission"). The obligations of Parent and Merger Sub to accept for payment; provided further that, and pay for, any shares of Company Common Stock tendered pursuant notwithstanding anything in the foregoing proviso to the Offer are subject to contrary, Subsidiary may not, without Target's prior written consent, (A) extend the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be if the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant failure to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive meet any condition to the Offer was directly or modify indirectly caused by an act or omission of Acquirer or Subsidiary or (B) effect any individual extension under clause (i) in excess of the terms amount of time reasonably believed by Acquirer to be necessary to satisfy such condition, which shall in no event exceed 10 business days; provided further that if Subsidiary does not consummate the Offer on the initial expiration date, or any extension thereof, due to the failure of one or more conditions in any of paragraphs (a), (b), (c) or (e) of Annex A to be satisfied, Acquirer shall cause Subsidiary to, and Subsidiary shall, unless Target shall have materially breached this Plan of Merger and failed to cure such breach within 15 days of being notified thereof in writing, extend the Offer one or more times until the earlier of (i) 11:59 p.m. New York City time on the 60th calendar day after the date of this Plan of Merger or (ii) 2 business days after such time as such condition or conditions are satisfied or waived; provided further that Subsidiary shall not be obligated to extend the Offer pursuant to the foregoing proviso if the condition that has not been satisfied is not reasonably capable of being cured or satisfied at or prior to the 60th calendar day after the date of this Plan of Merger. Without the prior written consent of Target, Subsidiary will not decrease the price per Share, decrease the number of Shares being sought in the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend other than by adding consideration), add additional conditions to the Offer, or, subject to the rights to extend the Offer as set forth above, make any other change in any manner the terms of the Offer which is adverse to the holders of Company Common StockShares. Notwithstanding It is agreed that the foregoingOffer will be subject only to the conditions set forth in Annex A hereto, Merger Sub which are for the benefit of Subsidiary and may (but shall not be obligated to)asserted or waived by Subsidiary in whole or in part at any time and from time to time, without the consent of the Company and in its sole and absolute discretion; provided, (A) from time to time extend however, that Subsidiary may not waive the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust Minimum Condition (as defined in Section 5.16 (a)Annex A hereto) so as to file with acquire less than a majority of the SEC under outstanding Shares without the Securities Act prior written consent of 1933, Target. As soon as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement practicable on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent Acquirer and Merger Sub Subsidiary shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, Commission a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff 14D-1 with respect to the Offer Documents promptly after (the receipt "Schedule 14D-1"), which will contain the offer to purchase and form of such comments the related letter of transmittal. Acquirer and Subsidiary shall consult give Target and its counsel the opportunity to review the Schedule 14D-1 and any amendments or supplements thereto prior to their being filed with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such commentsCommission. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. IfSubsidiary may, at any time prior time, transfer or assign to one or more corporations directly or indirectly wholly owned by Acquirer the time of consummation right to purchase all or any portion of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase Shares tendered pursuant to the Offer, but any such transfer or assignment shall not relieve Subsidiary of its obligations under the Offer or prejudice the rights of tendering shareholders to receive payment for Shares properly tendered and accepted for payment.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII Eight hereof and none of the events set forth in paragraphs Annex I hereto (athe "Tender Offer Conditions") through (e) or (h) of Exhibit A hereto shall have occurred or be existingoccurred, as promptly as reasonably practicable practicable, but in no event later than ten business days after the date of the public announcement of this AgreementMay 15, 2000, Parent and Merger Sub shall cause the Purchaser to commence the Offer (within the meaning of Rule 14d-2 under the applicable Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder), the "Exchange Act") an offer to purchase all outstanding Shares at the Offer Price, shall, upon commencement of the Offer but after affording the Company a reasonable opportunity to review and comment thereon, file Schedule TO and all other necessary documents with the Securities and Exchange Commission (the "SEC")) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the "Offer Documents") and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions thereof. The obligations obligation of Parent and Merger Sub the Purchaser to accept for payment, and payment or pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are will be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A. The initial expiration date of Annex I hereto.
(b) Without the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub the Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce decrease the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, impose additional conditions to the Offer or (vi) otherwise amend any other term of the Offer in any manner adverse to the holders of Company Common StockShares. Notwithstanding The Offer shall remain open until the foregoing, Merger Sub may date that is 20 business days (but shall not be obligated toas such term is defined in Rule 14d-1(c)(6) under the Exchange Act) after the commencement of the Offer (the "Expiration Date"), without unless the consent Purchaser shall have extended the period of time for which the Company Offer is open pursuant to, and in its sole 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 absolute discretiondate as the Offer, (A) from time to time extend the Offer ifas so extended, may expire. If at the scheduled any Expiration Date, any of the conditions of the Tender Offer shall Conditions is not have been satisfied or waived until such by the Purchaser, the Purchaser may extend the Offer from time as such conditions are satisfied to time; provided, however, that, on the scheduled -------- ------- expiration date of the Offer, (i) if the waiting period under the HSR Act or waived under any material applicable foreign statutes or regulations applicable to the extent permitted by this Agreement; 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) extend such time at which the Offer for any period required by any rule, regulation, interpretation matters described in such paragraphs (a) or position of the SEC applicable to the Offer(b) shall have become final and nonappealable; or (Ciii) extend if all of the Tender Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least Conditions are satisfied and more than 70% but less than 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date Shares on which Parent or Merger Sub a fully diluted basis (excluding Options (as the case may bedefined herein) first accepts shares which are not exercisable for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock 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 that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably soon as practicable but in no event later than ten business days after the such expiration date of the public announcement Offer. Without the prior written consent of this Agreementthe Company, the Company Purchaser shall cause not accept for payment or pay for any Shares in the CVR Trust Offer if, as a result, Purchaser would acquire less than the number of Shares necessary to satisfy the Minimum Condition (as defined in Section 5.16 (aAnnex I hereto)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its Article VIII, upon the terms pursuant and subject to Article VII hereof and none the conditions of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingthis Agreement, as promptly soon as reasonably practicable (but in no event later than ten business days after the date of the initial public announcement of the execution and delivery of this Agreement), Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer (within the meaning of the applicable rules and regulations of Rule 14d-2 under the Securities and Exchange Commission Act of 1934, as amended (the "SEC"“Exchange Act”). ) the Offer.
(b) The obligations of Parent and Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, irrevocably deposit all requisite funds with the Paying Agent and pay for, any all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A. The initial expiration date A (the “Offer Conditions”) (without limiting the right of Merger Sub to terminate, extend or modify the Offer in accordance with the terms of this Agreement) and not to any other conditions.
(c) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall be remain open until 11:59 p.m., New York City time, on the 25th 20th business day following the commencement of the Offer (calculated in accordance with Rule 14d-1(g)(3) under the initial "Exchange Act) (the “Initial Expiration Date," ”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and any expiration in accordance with, Section 1.1(d) or as may be required by applicable Law, the time and date established pursuant to an authorized extension of which the Offer as has been so extendedextended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with Section 1.1(d), shall also be defined herein as an "the “Expiration Date"”). Parent and Merger Sub and Parent expressly reserve the right to waive waive, in whole or in part, any condition Offer Condition at any time and from time to time, in their sole and absolute discretion, other than the Offer Minimum Tender Condition, or to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Common Offer Price, Series A Offer Price, Series B Offer Price to be paid pursuant to the Offeror Series C-1 Offer Price, (iii) change waive, amend or waive modify the Minimum Tender Condition Condition, (as defined in Exhibit A), add iv) impose any additions to the conditions set forth in Exhibit A Offer Conditions or amend, modify or supplement any condition set forth in Exhibit A of the Offer Conditions in any manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided below in this Section 1.01(a)1.1, terminate, extend or otherwise amend or modify the Expiration Date or time of, the Offer, (vvi) change the all-cash form of consideration payable in the Offer Offer, or (vivii) otherwise amend amend, modify or supplement any of the terms of the Offer in any manner adverse to the holders of Company Common Stock. .
(d) Notwithstanding the foregoing, Merger Sub may (but shall, and Parent shall not be obligated cause Merger Sub to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer iffor one or more consecutive increments of not more than five business days each (the length of such period to be determined by Parent or Merger Sub in their sole discretion), or for such longer period as the parties may agree, if at the scheduled Expiration Date, expiration date of the Offer any of the conditions of the Offer Conditions shall not have been satisfied or waived waived, until such time as such conditions are shall have been satisfied or waived and (B) extend the Offer for the minimum period required by any rule, regulation or interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that under no circumstance shall Merger Sub be required to extend the Offer beyond the Outside Date. Upon the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, irrevocably deposit all requisite funds with the Paying Agent and pay for, all shares of Company Stock validly tendered and not theretofore validly withdrawn pursuant to the Offer, such that Merger Sub becomes irrevocably obligated to purchase pursuant to the Offer all such shares on or as promptly as practicable after the Expiration Date. The time at which Merger Sub first accepts for payment the shares of Company Stock validly tendered and not validly withdrawn in the Offer is hereinafter referred to as the “Acceptance Time.” The Offer may not be terminated prior to its Expiration Date (as such Expiration Date may be extended in accordance with this Section 1.1(d)), unless this Agreement is validly terminated in accordance with Section 8.1. If the Offer is terminated or withdrawn by Merger Sub to the extent permitted by this Agreement; (B) extend the Offer for , or this Agreement is terminated in accordance with Section 8.1, Merger Sub shall promptly return, and shall cause any period required by any ruledepository acting on behalf of Merger Sub to promptly return, regulation, interpretation or position all tendered shares of the SEC applicable Company Stock to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days registered holders thereof. Nothing contained in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are this Section 1.1 shall affect any termination rights set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable lawSection 8.1.
(be) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to SEC in accordance with Rule 14d-3 under the Company's stockholders, as and to the extent required by applicable federal securities laws, Exchange Act a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain or, as permitted, incorporate by reference, an offer to purchase and exchange and will contain or incorporate by reference all or part forms of the Registration Statement and a related letter of transmittal transmittal, summary advertisement, notices to brokers, clients and summary advertisement dealers, and all other ancillary Offer documents (such Schedule TO and the all such documents included therein or, as permitted, incorporated by reference therein, pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or all supplements, amendments and exhibits thereto, the "“Offer Documents"”) and shall disseminate the appropriate Offer Documents to the holders of Company Stock. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company and the holders of Company Stock required by the Exchange Act to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 1.1(e), including communication of the Offer to the record and beneficial holders of Company Stock. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Parent and Merger Sub and the Company shall take all steps necessary to amend or supplement the Offer Documents and (i) to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Company Stock, in each case as and to the extent required by applicable Federal securities Laws and (ii) to cause the Offer Documents, as amended or deemed advisable under applicable federal securities laws. Each supplemented, to comply as to form in all material respects with the requirements of the parties hereto shall use Exchange Act, the applicable rules and regulations of NASDAQ and all reasonable efforts other applicable Laws. Prior to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the Offer. Following the time the Registration Statement is declared effectiveholders of Company Stock, Parent and Merger Sub shall provide the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective its counsel shall be given a reasonable opportunity to review and comment upon on such Offer Documents, and Parent and Merger Sub shall give reasonable and good faith consideration to all comments made by the Offer Documents prior to their filing with the SEC Company or dissemination to the stockholders of the Companyits counsel. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Sub shall promptly provide to the Company and its counselcounsel with copies of all written comments, or Parent and Merger Sub shall promptly inform the Company and their counsel, respectively, in writing any written comments (and orally, any its counsel of all oral comments), that Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments Documents, and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, comments of the issuance of any stop order, SEC or of the suspension of the qualification of the CVR Certificates issuable in connection its staff with respect to the Offer for offering or sale in any jurisdiction. IfDocuments, at any time prior give reasonable and good faith consideration to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered all comments made by the Company or Parent its counsel, and which should be set forth to participate in an amendment or supplement to any substantive telephonic communications with the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light staff of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Companyrelated thereto.
(cf) Parent shall provide or cause to be provided to Merger Sub promptly (and, in any case, on a sufficiently timely basis to enable Merger Sub to comply with the provisions of Section 1.1(d)) all funds necessary to purchase any the shares of Company Common Stock that Merger Sub has accepted for payment and irrevocably becomes obligated to purchase pursuant to the Offer.
(g) Parent and Merger Sub shall be entitled to deduct and withhold from the consideration payable to any holder of shares of Company Stock pursuant to the Offer such amounts as Parent or Merger Sub are required to deduct and withhold in respect of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any applicable provision of state, local or foreign Tax Law. Amounts so withheld and paid to the appropriate taxing authority shall be treated for all purposes of this Agreement and the Offer as having been paid to the holder of Company Stock in respect of which such deduction or withholding was made.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof Section 8.01 and none of the events set forth in paragraphs clauses (a) through (e) or (hi) of Exhibit A Annex I hereto (as hereinafter provided) shall have occurred or be existing, the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) as promptly as reasonably practicable after the date hereof, but in no any event not later than ten five business days after the date of the initial public announcement of this Agreement, Parent and Merger Sub shall the Purchaser's intent to commence the Offer, the Offer within for all outstanding Shares at the meaning Offer Price applicable to such Shares. The Offer Prices shall, subject to applicable withholding taxes, be net to the seller in cash upon the terms and subject to the conditions of the applicable rules Offer. The initial expiration date for the Offer shall be the twentieth business day from and regulations 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 soon as reasonably practicable, the Purchaser shall file with the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to ) the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC, and cause to be disseminated to the CompanyPurchaser's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement 14D-1 (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to Purchase (the "Offer to Purchase"), which shall be mailed to the holders of Shares with respect to the Offer. The obligation of Parent to accept for payment or pay for any Shares tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in Annex I hereto. The 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; provided, however, that without the prior written consent of the Company, the Purchaser shall not decrease the price per Share or change the form of consideration payable in the Offer, decrease the number of Shares sought to be purchased in the Offer, change the conditions set forth in Annex I (or broaden the scope thereof) or waive the Minimum Condition (as defined in Annex I). Subject to the terms of the Offer and this Agreement and the satisfaction or waiver (to the extent permitted by this Agreement) of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, the Purchaser will accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after such expiration date of the Offer. Subject to Section 8.01, if the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by Parent, as of the Initial Expiration Date (or any subsequently scheduled expiration date), the Purchaser shall be permitted to extend the Offer from time to time for the shortest time periods which Parent reasonably believes are necessary until the consummation of the Offer. In addition, the Purchaser shall be permitted to extend the Offer on one or more occasions for an aggregate period of not more than ten business days beyond the latest expiration date if, as of such date, all of the conditions set forth in Annex I are satisfied or waived by Parent, but the number of Common Shares and Series A Shares validly tendered and not withdrawn pursuant to the Offer (after giving effect to the conversion of all such Series A Shares to Common Shares) equals 80% or more but less than 90% of the then outstanding Common Shares on a fully diluted basis (not taking into account the Rights). The Purchaser agrees that if the conditions set forth in clauses (a) and (b) of Annex I are not satisfied on any scheduled expiration date of the Offer, the Purchaser shall extend the Offer from time to time until such condition is satisfied or waived; provided, however, that the Purchaser shall not be required to extend the Offer beyond the date five months following the commencement of the Offer.
(b) The Offer Documents will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the Offer Documents. Each of Parent, Merger Sub Parent and the Company shall Purchaser, on the one hand, and the Company, on the other hand, agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise)respect, and each of Parent, Merger Sub and the Company shall Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to stockholders of the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable the opportunity to review and comment upon on the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time amendments thereto prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed filing thereof with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanySEC.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Interlake Corp)
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth specified in paragraphs clause (a) through (e) or (hiii) of Exhibit A hereto Annex I shall have occurred or and then be existingcontinuing, as promptly as reasonably practicable practical after the date hereof, but in no event later than ten the sixth business days day after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall cause Purchaser to commence the Offer (within the meaning of Rule 14d-2 under the applicable rules and regulations of Exchange Act) the Securities and Exchange Commission (Offer at the "SEC")Offer Price. The obligations obligation of Parent and Merger Sub Purchaser to consummate the Offer, to accept for payment, payment and to pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer are shall be subject to the satisfaction of the conditions set forth in Exhibit A. Annex I. The initial expiration date of the Offer shall be the 25th twentieth business day following commencement (within the commencement meaning of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 14d-2 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of the Company Common StockOffer. On the terms Parent shall cause Purchaser to, and Purchaser shall, subject to the conditions to the Offer that are set forth provided in this AgreementAnnex I, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Parent as soon as practicable after such expiration date and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no any event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file compliance with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") obligations respecting prompt payment pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b14e-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 net to the seller in cash, without interest, subject to any applicable withholding taxes.
(b) Purchaser reserves the right to (i) waive any of the conditions set forth in Annex I (other than the Minimum Condition and the condition relating to the expiration of the waiting period under the HSR Act), (ii) increase the price per Share payable in the Offer, and (iii) make any other changes in the terms of the Offer; provided, however, 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, (b) decreases the price per Share payable pursuant to the Offer, (c) changes the form of consideration to be paid for the Shares pursuant to the Offer, (d) imposes conditions to the Offer in addition to the conditions set forth in Annex I, (e) waives the Minimum Condition or waives the condition relating to the expiration of the waiting period under the HSR Act or (f) makes other changes in the terms and conditions of the Offer that are in any manner adverse to the holders of Shares. Without the prior written consent of the Company, Purchaser shall not extend the expiration date of commencement the Offer beyond the initial expiration date 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 I. As soon as reasonably practicable on the date the Offer is commenced, Parent and Merger Sub Purchaser shall file with the SECSEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the "Schedule TO") with respect to the Offer that (i) will comply in all material respects with the provisions of all applicable federal securities laws and (ii) will contain (including as an exhibit) or incorporate by reference the Offer to Purchase, a form of the 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"). Each of the Company, on the one hand, and Parent and Purchaser, on the other hand, agrees promptly to correct any information provided by it in writing for use in the Schedule TO or the Offer Documents if and to the extent that the Schedule TO or the Offer Documents shall be, or have become, false or misleading in any material respect, and Parent and Purchaser further agree to take all steps necessary to cause the 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 and any other holder of securities issued by the Company's stockholdersCompany (if any), as and in each case to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule TO with respect to the Offer, which . Parent and Purchaser shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). Each of Parent, Merger Sub and provide the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 its counsel with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and any Offer Documents prior to their filing before they are filed with the SEC or dissemination to the stockholders of the CompanySEC. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, Purchaser shall promptly provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, counsel in writing any written comments (with, and orallyconsult with the Company and its counsel regarding, any oral comments), comments Parent, Merger Sub Purchaser or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, Schedule TO or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the CompanyDocuments.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Specialty Equipment Companies Inc)
The Offer. (a) Subject to the conditions of this Agreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (e) or (h) of Exhibit A hereto shall have occurred or be existingAgreement, as promptly as reasonably practicable but in no event later than ten 10 business days after following the date of the public announcement of this Agreement, Purchaser shall, and Parent and Merger Sub shall cause Purchaser to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations ; provided, however, that the obligation of Purchaser to, and of Parent to --- -------- ------- cause Purchaser to, commence the Offer and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are is subject to the Minimum Tender Condition and the satisfaction or waiver of the other conditions set forth in Exhibit A. Annex I. The initial expiration date of the Offer (the "Expiration ---------- Date") shall be the 25th 20th business day following the commencement of the Offer ---- (the initial "Expiration Date," and any expiration time and date established determined pursuant to an authorized extension Rule 14d-2 promulgated by the SEC). Purchaser expressly reserves the right to modify the terms and conditions of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to set forth in Annex I (other than the Offer or modify the terms of the OfferMinimum Tender Condition), except that, without the prior written consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price price per share of Company Stock to be paid pursuant to the Offer, (iii) change reduce or waive modify the Minimum Tender Condition Condition, (as defined in Exhibit A), iv) modify or add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A Annex I in any manner adverse to the holders of Company Common StockStock (other than Parent and its subsidiaries), (ivv) except as provided below in this Section 1.01(a)the next sentence, extend the Offer, Offer or (vvi) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common StockOffer. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to)Purchaser may, without the consent of the Company and in its sole and absolute discretionCompany, (Ai) from time to time extend the Offer ifin increments of not more than five business days each, if at the scheduled Expiration Date, Date of the Offer any of the conditions to Purchaser's obligation to purchase shares of the Offer shall Company Stock are not have been satisfied or waived satisfied, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; waived, (Bii) 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) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC). Without limiting the right of Purchaser to extend the Offer, in the event that the Minimum Tender Condition is not satisfied at the scheduled Expiration Date of the Offer, at the request of the Company, Purchaser shall, and Parent shall cause Purchaser to, extend the Expiration Date of the Offer in increments of five business days each until the earliest to occur of (v) the date that is 60 days after the initial Expiration Date, (w) the satisfaction of the Minimum Tender Condition, (x) the reasonable determination by Parent that the Minimum Tender Condition is not capable of being satisfied on or prior to the date that is 60 days after the initial Expiration Date, (y) the termination of this Agreement in accordance with its terms and (z) July 30, 2001; or (C) provided, however, that Purchaser shall not be required to extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at least 90% of the outstanding shares of this sentence unless the Company Common Stockis in material compliance with all of its covenants in this Agreement. On the terms and subject to the conditions to of the Offer that are set forth in and this Agreement, promptly after the Expiration DatePurchaser shall, either and Parent or Merger Sub shall cause Purchaser to, accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares pay for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent as soon as practicable after the expiration of the Offer and Merger Sub are permitted to accept and pay for under applicable lawin any event not later than three business days after such expiration.
(b) As promptly soon as reasonably practicable but in no event later than ten business days after the date of the public announcement of this Agreement, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of commencement of the Offer, Purchaser shall, and Parent and Merger Sub shall cause Purchaser to, file with the SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement any related documents (such Schedule TO and the documents included or incorporated by reference therein pursuant to which the Offer will be made (including the Registration Statement)made, together with any supplements or amendments thereto, the "Offer ----- Documents"). Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company 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 SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time prior to the time of consummation of the Offer, any information relating to the Company, Merger Sub or the CVR Trust, Parent, or any of their respective affiliates, officers or directors, should be discovered by the Company or Parent and which should be set forth in an amendment or supplement to the Registration Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable law, disseminated to the stockholders of the Company.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Subject to the conditions of this Agreement and provided Provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof IX, and none of the events set forth in paragraphs (a), (b), (c) through (to the extent performance is required theretofore), (d), (e) or and (hf) of Exhibit A Annex I hereto shall have occurred or and be existingcontinuing, as promptly as reasonably practicable but and in no any event later than within ten business days (10) Business Days after the date of the public announcement of this Agreementhereof, Parent and Merger Sub shall cause MergerSub to commence the Offer (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer are subject to the conditions set forth in Exhibit A. The initial expiration date of the Offer shall be the 25th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, shall also be defined herein as an "Expiration Date"). Parent and Merger Sub expressly reserve the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price to be paid pursuant to the Offer, (iii) change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in this Section 1.01(a), extend the Offer, (v) change the form of consideration payable in the Offer or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may (but shall not be obligated to), without the consent of the Company and in its sole and absolute discretion, (A) from time to time extend the Offer if, at the scheduled Expiration Date, any of the conditions 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; (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC applicable to the Offer; or (C) extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 14d-2 under the Exchange Act) for a period of three an offer to twenty business days in order to acquire at least 90% of the purchase all outstanding shares of the Company Common Stock. On Shares and Series B Preferred Shares at the terms and subject to the conditions to the Offer that are set forth in this Agreement, promptly after the Expiration Date, either Parent or Merger Sub shall accept for payment and purchase, as promptly as practicable after the date on which Parent or Merger Sub (as the case may be) first accepts shares for payment pursuant to the Offer (the "Acceptance Date"), all shares of Company Common Stock validly tendered Offer Price and not withdrawn pursuant to the Preferred Stock Offer that Price, respectively, and Parent and Merger Sub are permitted to accept and pay for under applicable law.
(b) As promptly as reasonably practicable but in no event later than ten business days after the date of the public announcement of this AgreementMergerSub shall, the Company shall cause the CVR Trust (as defined in Section 5.16 (a)) to file with the SEC under the Securities Act of 1933, as amended and together with the rules and regulations promulgated thereunder (the "Securities Act"), a registration statement on Form S-4 (or such other appropriate form as may be required thereunder) (the "Registration Statement") to register the offer and sale by Merger Sub of certificates to be issued and registered by the CVR Trust representing the CVRs (the "CVR Certificates") pursuant to the Offer. The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act. On the date of upon commencement of the OfferOffer but after affording the Company reasonable opportunity to review and comment thereon, Parent and Merger Sub shall file with the SEC, and or cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, filed a Tender Offer Statement on Schedule TO with respect to the Offer, which shall contain an offer to purchase and exchange and will contain or incorporate by reference all or part of the Registration Statement and a related letter of transmittal and summary advertisement Offer (such Schedule TO and the documents included therein pursuant to which the Offer will be made (including the Registration Statement), together with any all amendments and supplements or amendments thereto and including exhibits thereto, the "“Schedule TO”) and all other necessary documents with the Securities and Exchange Commission (the “SEC”) and make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, in each case in connection with the Offer (the “Offer Documents"”), and shall use its commercially reasonable efforts to consummate the Offer, subject to the terms and conditions thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”), MergerSub shall, and Parent shall cause it to, as soon as possible, but in no event more than five (5) Business Days after the expiration of the Offer, as extended in accordance with this Section 2.01, (or, if applicable, the expiration of the “initial offering period”), accept for payment, and pay for (after giving effect to any required withholding Tax), all Company Common Shares and Series B Preferred Shares validly tendered pursuant to the Offer and not withdrawn (the first date of acceptance for payment and payment, the “Acceptance Date”). Each of Parent, Merger Sub Parent and the Company shall each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have originally been or shall become false or misleading in any material respect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent, Merger Sub and the Company Parent shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended corrected or supplemented supplemented, to be filed with the SEC and the Offer Documents Documents, as so amended corrected or supplemented supplemented, to be disseminated to the Company's stockholdersholders of shares, in each case as and to the extent required by or deemed advisable under applicable federal Federal securities laws. Each of the parties hereto shall use all reasonable efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after The Company and its filing and to maintain such effectiveness for so long as shall be required for the issuance of the CVR Certificates pursuant to the Offer. Following the time the Registration Statement is declared effective, the Company shall cause the CVR Trust to file the final prospectus included therein under Rule 424(b) promulgated pursuant to the Securities Act. Each of the parties hereto and their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, in writing any written (if in writing) and oral comments (and orally, any oral comments), Parent, Merger Sub that may be received by Parent or their counsel, on the one hand, or the Company on behalf of the CVR Trust, on the other hand, may receive its counsel from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel, or Parent and Merger Sub and their counsel, respectively, prior to responding proposed responses to any such comments. The Company will advise Parent and Merger Sub promptly after it receives notice that the Registration Statement and any supplement or amendment that has been filed have become effective, of the issuance of any stop order, or of the suspension of the qualification of the CVR Certificates issuable in connection with the Offer for offering or sale in any jurisdiction. If, at any time comments prior to the time submission of consummation any such responses to the SEC.
(b) Without the prior written consent of the Company, MergerSub shall not decrease the Common Stock Offer Price or Preferred Stock Offer Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares or Series B Preferred Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Common Shares or Series B Preferred Shares. MergerSub may, in its sole and absolute discretion, increase the Common Stock Offer Price or Preferred Stock Offer Price without the consent of the Company. The initial expiration date of the Offer shall be the twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act), unless extended in accordance with this Section 2.01. MergerSub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, any information relating subject to compliance with the Exchange Act and this subsection (b); provided that all such modifications to the Companyterms of the Offer (other than a modification to increase the Common Stock Offer Price or Preferred Stock Offer Price or to waive a condition to the Offer) shall not, Merger Sub in the aggregate, reasonably be expected to delay the Acceptance Date by more than ten Business Days after the first public dissemination of notice of any such modification and more than twenty Business Days beyond the initial expiration date of the Offer. Except as expressly provided below in this subsection (b), MergerSub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for tendered shares. Notwithstanding the CVR Trustforegoing, ParentMergerSub shall extend the Offer at any time and, or from time to time: (i) if at the then-scheduled expiration date of the Offer any of their respective affiliatesthe Tender Offer Conditions shall not have been satisfied or waived, officers until such time as such conditions are satisfied or directors, should waived; provided that any extension shall be discovered in increments of not more than three Business Days (unless a longer period of time is agreed to by the Company in writing, such agreement not to be unreasonably withheld); (2) for any period required by any rule, regulation, interpretation or Parent and which should be set forth in an amendment position of the SEC or supplement its staff applicable to the Registration Statement, so that any of such documents would not include any misstatement of a material fact Offer; or omit to state any material fact necessary to make (3) if the statements therein, in light Minimum Tender Condition has been satisfied and all of the circumstances under which they were madeother Tender Offer Conditions are satisfied or waived, and Company Common Shares and Series B Preferred Shares have been accepted for payment, but the number of (X) Company Common Shares, plus (Y) Series B Preferred Shares acquired by MergerSub (together with other Company Common Shares and Series B Preferred Shares owned of record by Parent or its Affiliates) is less than 90% of the then Fully Diluted Outstanding Company Common Shares for an aggregate period of not misleading, more than ten Business Days (for all such extensions pursuant to this clause (3)) as a “subsequent offering period” (the party that discovers such information “Subsequent Offering Period”) in accordance with Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, affect any termination rights in Article IX. Subject to the extent required by applicable law, disseminated to the stockholders terms of the Company.
(c) Parent shall provide or cause Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of any date on which the Offer is scheduled to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of expire, MergerSub will accept for payment and pay for all Company Common Stock that Merger Sub becomes obligated to purchase Shares and Series B Preferred Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable, but in no event more than five (5) Business Days, after the expiration of the Offer, as extended in accordance with this Section 2.01.
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Sources: Merger Agreement (Arkona Inc)