The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997. (b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. (c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Sun Healthcare Group Inc), Merger Agreement (Sun Healthcare Group Inc), Merger Agreement (Regency Health Services Inc)
The Offer. (a) Subject Merger Sub shall not, and Parent shall cause Merger Sub not to, commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer prior to the provisions of this AgreementApril 14, as 2015. As promptly as reasonably practicable but on or after such date (and, in no event later than the fifth business day from and including the date of the public announcement of this Agreementany event, within five (5) Business Days after such date), Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A Annex I (any the “Offer Conditions”). The Offer shall initially expire at 11:59 p.m. (New York City time) on the date twenty (20) Business Days following the commencement of which may be waived by the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act). Merger Sub expressly reserves the right to waive, in its sole discretionwhole or in part, provided any Offer Condition or modify the terms of the Offer; provided, however, that, without the consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) amend, modify or add to waive the conditions set forth in Exhibit AMinimum Tender Condition, (iv) add to the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to any holder of Company Common Stock, (v) except as provided required or permitted in the remainder of this Section 1.11.1(a), terminate, extend or otherwise amend or modify the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to any holder of Company Common Stock or (viii) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. Subject to the provisions of Article VII, (i) if at any scheduled expiration date of the Company's stockholders. The initial expiration date Offer any Offer Condition shall be September 15, 1997. Notwithstanding not have been satisfied or waived (to the foregoingextent permitted under applicable Law and this Agreement), Merger Sub may, in its sole discretion, without the consent of the Company, but subject extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days each (the Company's right length of such period to terminate be determined by Parent or Merger Sub), or for any such period longer than five (5) Business Days as the parties hereto may agree, until the earlier of (A) the termination of this Agreement pursuant to Section 8.1(b)(iiin accordance with its terms and (B) October 30, 2015 (the “End Date”), ; (iii) extend the Offer, if at the any scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Condition shall not be satisfied, until such time as such conditions are have been satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval extent permitted under applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof andLaw and this Agreement), at the request of the Company, if Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer, on one or more occasions, in consecutive increments of up to five (5) Business Days each (the length of such conditions are reasonably likely period to be satisfied during determined by Parent or Merger Sub), or for any such period longer than five (5) Business Days as the requested extension periodparties hereto may agree, extend the Offer until the earlier of (1A) such time as such condition is, or conditions are, satisfied or waived the termination of this Agreement in accordance with its terms and (2B) the date chosen End Date; and (iii) Merger Sub shall extend the Offer for the minimum period required by applicable Law or the Companyapplicable rules, which regulations interpretations or positions of the SEC or its staff or the New York Stock Exchange; provided, however, that, notwithstanding any other provision of this Agreement to the contrary, in no event shall not Merger Sub be later than required to extend the Offer (x) December 31, 1997 beyond the End Date or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood at any time that the Company shall not be Parent or Merger Sub is entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateAgreement. Subject to 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, and pay for for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding . Payment of shares of Company Common Stock by Merger Sub pursuant to and subject to the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date conditions of the Offer for a period is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” The Offer may not be terminated prior to exceed ten business days its expiration date (as such expiration date may be extended and re-extended in no accordance with this Section 1.1(a)), unless this Agreement is validly terminated in accordance with Section 7.1. In the event ending after December 31that this Agreement is terminated pursuant to Article VII, 1997Merger Sub shall promptly (and, if Parent reasonably believes that as a result in any event, within twenty-four (24) hours of such extension 90% or more of the Shares will be tendered in termination), irrevocably and unconditionally terminate the Offer. IfThe termination of the Offer pursuant to the immediately preceding sentence is referred to this Agreement as the “Offer Termination,” and the date on which the Offer Termination occurs is referred to in this Agreement as the “Offer Termination Date.” If the Offer is terminated or withdrawn by Merger Sub, at any scheduled expiration date prior to October 1or this Agreement is validly terminated in accordance with Article VII, 1997, there Merger Sub shall have been tenderedpromptly return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 promulgated under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”), which shall contain include, as exhibits, an offer to purchase and a related letter of transmittal and transmittal, a summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents and exhibits included therein pursuant to which the Offer will be mademade (such Schedule TO and the documents attached as exhibits thereto, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent and Merger Sub all material respects with information concerning the requirements of Company that is required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC (or the staff of the SEC) or any request from the SEC (or the staff of the SEC) for amendments or supplements to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between Parent, Merger Sub and their respective Representatives, on the one hand, and the SEC (or the staff of the SEC), on the other hand. Parent and Merger Sub shall use their respective reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC (or the staff of the SEC) with respect to the Offer Documents. Prior to the filing of the Offer Documents (or any amendment or supplement thereto) or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, Parent and Merger Sub shall provide the Company a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC propose comments on such document or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsresponse.
(c) Parent shall contribute 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 and, if Parent and Merger Sub have received the prior consent of the Company, any “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. The Company agrees that it shall not, and shall cause its affiliates not to, tender to perform Merger Sub pursuant to the Offer any shares of Company Common Stock held by the Company or any of its other obligations pursuant to this Agreementsubsidiaries.
Appears in 3 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Norcraft Companies, Inc.), Merger Agreement (Fortune Brands Home & Security, Inc.)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but (and, in no event any event, not later than the fifth business day from and including third Business Day following the date of hereof) after the public announcement date of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence amend the Existing Offer to reflect the terms and conditions of this Agreement, including the purchase price of $26.50 per Share (including the associated Company Rights), net to the seller in cash, without interest thereon (the “Offer Price”), and to set December 28, 2004 or such later date that is 10 Business Days after the date of such amendment (the “Initial Expiration Date”), as the expiration date for the Offer. The obligation obligations of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver by Merger Subsidiary of the conditions set forth in Exhibit A (any of which may be waived by A. Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub Subsidiary expressly reserves the right to waive any condition to the Offer or modify the terms of or conditions to the Offer, except that, without the consent of the Company, Merger Sub Subsidiary shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or change the Minimum Condition, (iv) add to the conditions set forth in Exhibit A, (ivv) except as provided modify any condition set forth in Exhibit A or amend any term of the remainder Offer set forth in this Agreement, in each case, in any manner adverse to the holders of this Section 1.1Shares, (vi) extend the Offer, Offer or (vvii) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997consideration. Notwithstanding the foregoing, (A) Merger Sub maySubsidiary shall extend the Offer (x) from time to time, for a period not to exceed 5 Business Days on each occasion, if at the scheduled or extended expiration date of the Offer the Minimum Condition shall not have been satisfied until such time as such condition is satisfied or waived or this Agreement is terminated or (y) from time to time for a period of 5 Business Days at a time (or such other period as the Company shall approve) if condition (a) set forth in Exhibit A shall not have been satisfied at the scheduled or any extended expiration date of the Offer, until such time as such condition is satisfied or waived or this Agreement is terminated and (B) without the consent of the Company, but subject to Merger Subsidiary shall have the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), extend the Offer (i) extend the Offerfrom time to time, if for a period not to exceed 10 Business Days on each such occasion, if, at the scheduled or extended expiration date of the Offer Offer, any of the other conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived or and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval period required by applicable to law. Following expiration of the Offer. , Merger Sub agrees that: Subsidiary may, in its sole discretion, provide a subsequent offering period (A“Subsequent Offering Period”) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure Rule 14d-11 of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateExchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer and this AgreementOffer, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub it to, accept for payment and pay for (i) all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the (ii) all Shares will be validly tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of Subsequent Offering Period promptly following the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997valid tender thereof.
(b) On As promptly as practicable after the date of commencement of the Offerthis Agreement, Parent and Merger Sub Subsidiary shall file with (i) amend the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that was originally filed on June 9, 2003 to reflect the terms and conditions of this Agreement, and file such amendment (the “Schedule TO Amendment”) with the SEC, which shall contain an offer Amended and Restated Offer to purchase Purchase reflecting the terms and conditions of this Agreement, and a related revised form of the letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be madecollectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) cause the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order disseminated to make the statements therein, in light holders of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsShares. Each of Parent, Merger Sub Subsidiary and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to Subsidiary 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 to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to Subsidiary shall provide the Company and its counsel with any comments or other communications, whether written or oral, that Parent, Merger Sub Subsidiary or their counsel may receive after the date of this Agreement from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or other communications.
(c) Parent shall contribute provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 3 contracts
Sources: Merger Agreement (Oracle Corp /De/), Merger Agreement (Peoplesoft Inc), Merger Agreement (Oracle Corp /De/)
The Offer. (a) Subject to the provisions of terms and conditions set forth in this Agreement, as promptly as practicable but in no event later than the fifth within five (5) business day from and including days after the date of the public announcement announcement, which shall occur on the date hereof or the following day, by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act (as hereinafter defined)) the Offer, which shall expire at midnight, New York City time, on the date that is twenty (20) business days after the date the Offer is commenced (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an "Expiration Date"). The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer, conduct and consummate the Offer as soon as practicable after the date hereof and accept for payment, and pay for, any shares of Common Stock Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole discretion, provided that, without the express written consent of the Company, Merger Sub shall may not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify the conditions set forth in Exhibit AOffer Conditions, including the Minimum Condition, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, if all of the Offer Conditions are satisfied or waived, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify alter any term of the Offer in any manner materially adverse to any the holders of the Shares, provided, however, that nothing contained herein shall prohibit Sub, in its sole discretion without the consent of the Company's stockholders. The initial expiration date shall be September 15, 1997from waiving satisfaction of any condition to the Offer other than the Minimum Condition. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer (each individual extension not to exceed five (5) business days after the previously scheduled Expiration Date), if at the then scheduled expiration date Expiration Date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , and (AC) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until on up to two occasions in each case for period of not more than five (5) business days beyond the earlier latest Expiration Date if on such Expiration Date there shall have been tendered more than the number of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled Shares sufficient to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of satisfy the Minimum Condition to be satisfied, it shall, at the request but less than 90% of the CompanyShares; provided, extend Parent agrees to permanently waive the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateConditions. Subject to the terms and conditions of the Offer and this AgreementSection 1.1(a), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to written information supplied by or on behalf of the Company in writing or any of its stockholders for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary sufficient to purchase accept for payment, and pay for, any shares of Common Stock and all Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 3 contracts
Sources: Merger Agreement (Ewok Acquisition Corp), Agreement and Plan of Merger (Endogen Inc), Agreement and Plan of Merger (Endogen Inc)
The Offer. (a) Subject to the provisions conditions of this AgreementAgreement 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 the fifth ten business day from and including 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. The obligation of Merger Sub to, and of Parent to 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 the Offer shall be are subject only to the conditions set forth in Exhibit A 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 which may the Offer as so extended, shall also be waived by defined herein as an "Expiration Date"). Parent and Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent expressly reserve the right to purchase all or waive any portion of the Shares tendered pursuant condition to the Offer, but no such assignment shall relieve Parent Offer or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to 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 price per share of Common Stock Offer Price to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit AA 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 the remainder of this Section 1.11.01(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub maymay (but shall not be obligated to), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Company and in its sole and absolute discretion, (iA) from time to time extend the OfferOffer if, if at the scheduled expiration date of the Offer Expiration Date, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfied, have been satisfied or waived until such time as such conditions are satisfied or waived or to the extent permitted by this Agreement; (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval SEC applicable to the Offer. Merger Sub agrees that: ; or (AC) in the event it would otherwise be entitled to terminate 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 any scheduled expiration thereof due least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the failure of one or more of conditions to the conditions Offer that are set forth in this Agreement, promptly after the first sentence of the introductory paragraph Expiration Date, either Parent or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedMerger Sub shall accept for payment and purchase, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) promptly as practicable after the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Parent or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of (as the case may be) first accepts shares for payment pursuant to the Offer in accordance with (the terms of this Section 1.1(a"Acceptance Date"); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub becomes obligated are permitted to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer accept and pay for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997under 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 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 14D-1 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 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be mademade (including the Registration Statement), together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respectrespect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent and Parent, Merger Sub further agrees to 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 federal securities laws. The 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 its their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree Sub, on the one hand, and the Company on behalf of the CVR Trust, on the other hand, shall provide to provide the Company and its counsel 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 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 contribute 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 3 contracts
Sources: Merger Agreement (Information Resources Inc), Merger Agreement (Information Resources Inc), Merger Agreement (Information Resources Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Offer. The Offer Documents (as so amended, the “Amended Offer Documents”) and file with the Securities and Exchange Commission (the “SEC”) the Amended Offer Documents; provided, however, that the obligation of 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 tendered pursuant to the Offer shall be is subject only to the conditions set forth in Exhibit A Annex 1 (any or all of which may (other than the Minimum Tender Condition) may, subject to the provisions hereof, be waived by Merger Sub in its sole discretionParent or Sub, provided that, without the consent subject to applicable Law). The initial expiration date of the Company, Merger Sub Offer (the “Expiration Date”) shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rules 14d-1 and 14d-2 promulgated by the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms and conditions 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 subject sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify reduce or waive the Minimum Tender Condition (defined in Annex 1), (iv) add to the conditions set forth in Exhibit AAnnex 1, (ivv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend or modify any term other condition of the Offer in any manner adverse to any of the Company's ’s stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer in increments of not more than ten business days each, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's ’s obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation interpretation, position or position request of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (C) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC). Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate the Offer at that any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Annex 1 is not satisfied or waived, it shall give waived at the Company notice thereof andscheduled Expiration Date, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodSub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of five business days each until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2v) the date chosen by that is 15 days after the Companyinitial Expiration Date, which shall not be later than (w) the satisfaction or waiver of such condition, (x) December 31the determination by Parent that such condition to the Offer is not capable of being satisfied on or prior to the date specified in Section 9.01(b)(ii)(B), 1997 provided that such inability to satisfy such condition is not due to any failure of Parent or Sub to perform in any material respect any covenant or agreement of Parent or Sub contained herein, or the material breach by Parent or Sub of any representation or warranty contained herein, (y) the termination of this Agreement in accordance with its terms and (z) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood specified in Section 9.01(b)(ii)(B); provided, however, that the Company Parent and Sub shall not be entitled required to make such request so extend the Expiration Date if it is then the failure to satisfy any condition set forth in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Annex 1 was caused by or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to resulted from the failure of the Minimum Condition Company to be satisfied, it shall, at the request perform in any material respect any covenant or agreement of the CompanyCompany contained herein, extend or the Offer for such period as may be requested material breach by the Company not to exceed ten business days from such scheduled expiration dateof any representation or warranty contained herein. Subject to 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 accept for all payment shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as it is legally permitted to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997do so under applicable Law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain contained an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be is being made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as cooperate fully in the preparation of amendments to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on to reflect the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement terms of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by this Agreement and the Company in writing for inclusion in and its counsel shall be given a reasonable opportunity to review the Amended Offer DocumentsDocuments before they are filed with the SEC. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to further amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger and Sub on a have timely basis filed with the funds necessary to purchase Commissioner of Commerce of the State of Minnesota any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant registration statement relating to the Offer and required to perform any of its other obligations be filed pursuant to this AgreementChapter 80B of the Minnesota Statutes and shall disseminate to the Company’s stockholders 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.
Appears in 3 contracts
Sources: Merger Agreement (Ruby Merger Corp.), Merger Agreement (Ruby Merger Corp.), Merger Agreement (Retek Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent The Borrower shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A not permit Bidco (any of which may be waived by Merger Sub in its sole discretion, provided that, without the Arrangers’ prior written consent of the Company(such consent not to be unreasonably withheld, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit Aconditioned or delayed)) and (i) to the terms and conditions of this Agreement. Merger Sub may at amend, supplement, modify, waive or treat as satisfied any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms condition of the Offer, except that, without the consent of Convertible Offer or the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, Private Sale or (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)amend, (iii) supplement, modify or add to the conditions set forth in Exhibit waive (A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer Document after submission to BaFin, (B) any term of the Convertible Offer Document after publication or (C) any term of the Purchase Agreement, or grant any consent under any of them, in each case in any manner respect that, in the aggregate, is materially adverse to the Lenders, provided that any amendment, supplement, modification, waiver or treatment as satisfied of any of the Company's stockholdersKey Offer Terms or Key Convertible Offer Terms (other than an amendment or supplement of an administrative or technical nature and other than in connection with a reduction of the Maximum Offer Consideration or the Maximum Convertible Offer Consideration) shall, in each case be deemed to be materially adverse to the Lenders. The initial expiration date Borrower shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub maynot, without the Arrangers’ prior written consent of the Company(such consent not to be unreasonably withheld, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(iiconditioned or delayed)), permit (i) extend the Offer, if at consideration to be paid to the scheduled expiration date shareholders of Target in connection with the Offer any of and to be paid under the conditions Purchase Agreement to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfiedexceed, until such time as such conditions are satisfied on a price or waived or value per share basis, the Maximum Offer Consideration and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position consideration per Convertible Bond to be paid to the holders of the Securities and Exchange Commission (Convertible Bonds in connection with the "SEC") Convertible Bond Offer to exceed, on a price or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companyvalue per bond basis, the Company may request and Merger Sub shall make further extensions of the Maximum Convertible Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Consideration.
(b) On the date of commencement Without prejudice to any of the Offerabove, Parent without the Arrangers’ prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), the Borrower shall not and Merger Sub shall file not permit Bidco or any other Affiliate (or any person acting collectively with Borrower, Bidco or any of their Affiliates within the SEC meaning of Section 2(5) of the German Takeover Act) to (i) enter into agreements which entitle them to demand the transfer of title to shares of the Target or Convertible Bonds if such agreements contain more or different closing conditions than the ones set forth in Section 4.2.1 of the Purchase Agreement unless the settlement of those agreements occurs no later than the Closing Date, (ii) take any actions or measures which would result in an attribution of voting rights pursuant to Section 30 of the German Takeover Act pursuant to Section 4.2.1(iii) of the Purchase Agreement without being able to legally ensure that such voting rights can be exercised by Bidco in the general meeting resolving upon the Domination Agreement; this shall apply mutatis mutandis to an attribution pursuant to Section 4.2.1(v)(C) of the Purchase Agreement or (iii) take any action to declare a Tender Offer Statement on Schedule 14D-1 with respect special dividend of Target at any time prior to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement execution of a material fact or omit to state Domination Agreement that would decrease the conversion price under any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion bond convertible into shares in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and Target to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 it would conflict with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsBorrower’s obligation under Section 6.12(d).
(c) Parent The Borrower shall contribute not permit Bidco to Merger Sub on take any action or step (or permit the taking of any action or step) which may result in Bidco, the Borrower or any of its Subsidiaries being or becoming obliged to make a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase mandatory offer pursuant to Section 35 of the Offer German Takeover Code.
(d) Except as required by law or regulation, the Borrower shall not, and to perform not permit BidCo nor any of its other obligations pursuant Subsidiaries to this Agreementmake any statement or announcement (other than in the Offer Document) which contains any information or statement concerning the Loan Documents or the Arrangers, Agents or Lenders without the prior consent of the Arrangers.
Appears in 3 contracts
Sources: Senior Bridge Term Loan Agreement, Senior Bridge Term Loan Agreement (McKesson Corp), Senior Bridge Term Loan Agreement (McKesson Corp)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and none of the events set forth in paragraph (iii)(B) of Annex I to the provisions of this AgreementAgreement shall exist or have occurred and be continuing, as promptly as practicable (but in no event later than the fifth business day from and including ten Business Days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer. The obligation of Merger Sub to, Parent and of Parent to cause Merger Sub to, commence the Company shall coordinate on determining the Offer and accept for payment, and pay for, any shares of Common Stock tendered Commencement Date pursuant to the foregoing to be a date such that the Company is in a position to file the Schedule 14D-9 on the Offer Commencement Date, concurrently with the filing of the Schedule TO by Parent and Merger Sub. The Offer shall be subject only to the conditions set forth in Exhibit A Annex I hereto (the “Offer Conditions”). The date on which Merger Sub commences the Offer is referred to as the “Offer Commencement Date”.
(b) Merger Sub expressly reserves the right to waive any of which may be waived by Merger Sub the Offer Conditions and to make any change in its sole discretion, the terms of or conditions to the Offer not inconsistent with this Agreement; provided that, without the prior written consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not not:
(i) reduce decrease the Offer Price;
(ii) change the amount or form of consideration to be paid in the Offer;
(iii) decrease the number of shares of Common Stock subject to Shares sought in the Offer, ;
(iiiv) reduce the price per share of Common Stock to be paid pursuant impose conditions to the Offer (except pursuant in addition to Section 3.4), (iii) those set forth in Annex I or modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, Annex I;
(v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) terminate, accelerate, limit or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for in any manner other than in accordance with the terms of Section 2.01(d); or
(vi) otherwise amend, modify or supplement any of the Offer Conditions or terms of the Offer in a period not manner that is, or would reasonably be expected to exceed ten business days and in no event ending after December 31be, 1997, if Parent reasonably believes that as a result of such extension 90% or more adverse to the holders of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer other than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsSub.
(c) Parent The Offer shall contribute to Merger Sub expire at one minute after 11:59 p.m. (New York City time) on a timely basis the funds necessary to purchase any shares of Common Stock date that Merger Sub becomes obligated to purchase pursuant to is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the ▇▇▇▇ ▇▇▇) after the Offer Commencement Date (the “Expiration Time”), unless the period of time for which the Offer is open shall have been extended pursuant to, and to perform any in accordance with, the provisions of its other obligations pursuant to this AgreementAgreement (in which case the term “Expiration Time” shall mean the earliest time and date that the Offer, as so extended, may expire).
Appears in 3 contracts
Sources: Merger Agreement (Santander Holdings USA, Inc.), Merger Agreement (Santander Consumer USA Holdings Inc.), Merger Agreement (Santander Holdings USA, Inc.)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have been terminated in no event later than the fifth business day from and including the date of the public announcement of this Agreementaccordance with Section 8.1, Merger Sub shall, shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the under the Securities Exchange Act of 1934, commence as amended (the Offer. “Exchange Act”)) the Offer as promptly as practicable following the date of this Agreement, and in any event within ten (10) Business Days following the date of this Agreement (or such other date as the Parties may agree in writing).
(b) The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver (to the extent permitted by applicable Laws) of only those conditions set forth in Exhibit A (any of which Annex A, as such conditions may be waived by modified in accordance with this Agreement (the “Offer Conditions”), and no other conditions.
(c) Parent and Merger Sub expressly reserve the right (in its their sole discretion) to (x) waive, provided thatin whole or in part, any Offer Condition (to the extent permitted by applicable Law), or (y) to increase the amount of cash constituting the Offer Price or to make any other changes in the terms and conditions of the Offer consistent with the terms of this Agreement; provided, however, without the prior written consent of the Company, neither Parent nor Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject Shares sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) add to the Offer Conditions or modify or change any Offer Condition in any manner adverse to holders of Shares or that makes the Offer Conditions more difficult to satisfy, (other than by increasing v) except as otherwise provided in this Section 1.1, extend the cash offer priceExpiration Time (as defined below) of the Offer, or (vi) amend otherwise amend, modify or modify supplement any term of the other terms of the Offer in any manner adverse to any the holders of the Company's stockholdersShares. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company, but subject to the Company's right to terminate except if this Agreement is terminated in accordance with Section 8.1. If this Agreement is terminated pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement8.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly (and in any event within 24 hours following such termination) terminate the Offer and not acquire any Shares pursuant thereto. If the Offer is terminated by Merger Sub, or if this Agreement is terminated in accordance with Section 8.1 prior to the acceptance for payment and payment for Shares in the Offer, Merger Sub shall promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(d) The initial expiration date and time of the Offer shall be midnight, New York time, on the date that is twenty (20) Business Days (for the purposes of this Section 1.1(d) and Section 1.1(e), Business Days shall be calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) from (and including the day of) the commencement of the Offer (such initial expiration date and time, and any expiration date and time established pursuant to an extension of the Offer in accordance with this Agreement, an “Expiration Time”).
(e) If, as a result of the Company’s failure to provide information required under Section 6.9(d) with respect to the Pro Forma Financial Statements, the initial scheduled Expiration Time is less than fifteen (15) Business Days from (but excluding the day of) the date on which the information required by Section 6.9(d) has been provided by the Company, and if this Agreement shall not have terminated in accordance with Section 8.1, then Merger Sub may extend the Offer once until a time that is not later than midnight, New York time, on the date that is fifteen (15) Business Days from (but excluding the day of) the date on which the information required by Section 6.9(d) has been provided by the Company. In addition, if at any then-scheduled Expiration Time, any of the Offer Conditions is not satisfied or waived (to the extent permitted by applicable Law) by Merger Sub, and if this Agreement shall not have terminated in accordance with Section 8.1, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer from time to time for periods of up to five (5) Business Days per extension (or such longer period as the Parties may agree) until the date on which all of the Offer Conditions are satisfied or so waived and the Offer is consummated; provided, however, that if the sole then-unsatisfied condition is the Minimum Condition, Merger Sub shall extend the Offer from time to time for up to a total of an additional ten (10) Business Days and, if following such extension or extensions the Minimum Tender Condition remains the sole then-unsatisfied condition, Merger Sub shall extend the Offer if and only if the Company shall have requested in writing that Merger Sub so extend the Offer. In addition, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Expiration Time for the minimum period required by the applicable rules, regulations, interpretations or positions of the SEC (or its staff), or rules of any securities exchange, in each case, as applicable to the Offer. Notwithstanding any provision in this Agreement to the contrary, in no event shall Merger Sub be required to extend the Offer beyond the Outside Date. In addition, Merger Sub may (and Parent shall cause Merger Sub to, if requested by the Company), following the Acceptance Time, make available one or more “subsequent offering periods” in accordance with Rule 14d-11 under the Exchange Act (each a “Subsequent Offering Period”); provided, however, that Merger Sub shall not make available such a Subsequent Offering Period in the event that, prior to the commencement of any such Subsequent Offering Period, Parent and Merger Sub directly or indirectly own more than ninety percent (90%) of the outstanding Shares.
(f) Subject to the satisfaction of the Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and accept for payment and pay for (subject to any withholding of tax pursuant to Section 3.4(h)) all shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable (and in any event within three (3) Business Days) after the Expiration Time and in accordance with applicable Law (the “Offer Closing” and the time and date on which Merger Sub accepts such Shares for payment, the “Acceptance Time”). Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then cause Merger Sub shall, at the request to fulfill all of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Sub’s obligations under this Agreement.
(bg) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file a tender offer statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain or include as exhibits an offer to purchase (the “Offer to Purchase”) and a forms of the related letter of transmittal and form of summary advertisement (such the Schedule 14D-1 TO and the documents and exhibits included therein pursuant Offer to which the Offer will be madePurchase, together with any all amendments, supplements or amendments and exhibits thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) cause the Offer Documents on (in each case as and to the date first publishedextent required by the Exchange Act), sent or given along with the notice of the Merger (the “Maryland Notice”) required by Section 3-106(d)(1) of the Maryland General Corporation Law (the “MGCL”), to be disseminated to the Company's stockholders, ’s stockholders of record. The Company shall not contain any untrue statement of a material fact or omit to state any material fact promptly furnish Parent and Merger Sub all information concerning the Company and the Company Subsidiaries as shall be required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents or the Maryland Notice if and to the extent that such information shall have become becomes false or misleading in any material respectrespect or as otherwise required by Law, and each of Parent and Merger Sub 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 to be disseminated to the Company's ’s stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable Federal U.S. federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all (including any amendments and supplements thereto thereto) prior to their the filing thereof with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree shall provide to provide the Company and its counsel (i) any comments Parentor communications, whether written or oral, that Parent or Merger Sub (or their counsel counsel) may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
comments or communications and (cii) Parent shall contribute a reasonable opportunity to Merger Sub on a timely basis participate in the funds necessary response to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer such comments or communications and to perform any of its other obligations pursuant to this Agreementprovide comments on such response.
Appears in 3 contracts
Sources: Merger Agreement (Hillshire Brands Co), Merger Agreement (Tyson Foods Inc), Merger Agreement (Tyson Foods Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, Parent shall, as promptly as practicable but and in no event later than ten business days after the fifth business day from and including date hereof, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer at the Offer Price, net to the seller but subject to any required withholding of Taxes.
(b) The initial expiration date of the public announcement Offer shall be midnight (New York City time) on the date that is 20 business days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Date” and any expiration time and date established pursuant to an extension of this Agreementthe Offer as so extended, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. also an “Expiration Date”).
(c) The obligation of Merger Sub to, and obligations of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Public Shares tendered pursuant to the Offer shall be are subject only to (i) the conditions set forth in Exhibit A 1 and (any of which may be waived by Merger Sub in its sole discretion, provided that, without ii) the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered non-waivable condition that pursuant to the Offer, but no 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 options, warrants and other rights to purchase shares of Common Stock and excluding from the numerator of such assignment shall relieve calculation any shares held by stockholders that are affiliated with the Company, including directors and officers of the Company, as of the Acceptance Time) (the “Majority-of-the-Minority Condition”).
(d) Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right (x) 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 consent of the Company, Merger Sub Parent shall not (i) reduce the number of shares of Common Stock Public Shares subject to the Offer, (ii) except as provided in Section 4.4, reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A1 or modify any condition set forth in Exhibit 1 in any manner adverse to the holders of Public Shares, (iv) except as otherwise provided in the remainder of this Section 1.11.1(d), extend the Offer, (v) waive or modify the Majority-of-the-Minority Condition, or (vi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub Parent may, in its discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer for one or more consecutive increments of not more than ten business days each, if at the any otherwise scheduled expiration date Expiration Date of the Offer any of the conditions to Merger Sub's Parent’s obligation to purchase shares of Common Stock shall Public Shares are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or (iii) make available a “subsequent offering period” in order to obtain accordance with Exchange Act Rule 14d-11. In addition, if at any material regulatory approval applicable otherwise scheduled Expiration Date of the Offer any condition to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be is not satisfied or waived, it Parent shall give extend the Company notice thereof and, Offer at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer Company for one or more consecutive increments of not more than ten business days each until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen that is 40 business days after commencement of the Offer (the “Outside Date”) and the termination of this Agreement in accordance with its terms. In addition, Parent shall, if requested by the Company, which make available a subsequent offering period in accordance with Exchange Act Rule 14d-11 of not less than ten business days; provided that Parent shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled required to make available such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement a subsequent offering period in the event that, prior to the commencement of such subsequent offering period, MUFG and its Subsidiaries collectively hold at least 90% of the outstanding shares of Common Stock (the requirement that MUFG and its Subsidiaries collectively hold at least 90% of the Company is in breach hereof or outstanding shares of Common Stock being the conditions specified in paragraphs (d) or “90% Requirement”).
(e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all shares of Common Stock Public Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub Parent becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided. For purposes of this Agreement, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten term “business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there day” shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at meaning assigned to such term in Rule 14d-1(g)(3) under the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Bank of Tokyo - Mitsubishi Ufj, LTD), Merger Agreement (Unionbancal Corp), Merger Agreement (Mitsubishi Ufj Financial Group Inc)
The Offer. (a) Subject Upon the terms and subject to the provisions conditions of this AgreementAgreement (including ARTICLE VIII), as promptly as practicable (but in no event later than the fifth business day from and including the date of the public announcement of this AgreementAugust 20, 2010), Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer; provided, that the Company agrees that no shares of Company Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition “Offer Conditions”).
(as i) The initial Expiration Date (defined in Exhibit A)) shall be 12:00 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rules 14d-1(g)(3) and to 14d-2 under the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any 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 shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (D) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (other than by increasing E) extend the cash offer priceOffer except as provided in this Section 1.1 for a period of five (5) Business Days on each such occasion or (viF) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of Company Common Stock or that would reasonably be expected to prevent, materially delay or impair the Company's stockholders. The initial expiration date shall be September 15ability of Parent or Merger Sub to consummate the Offer, 1997. the Merger or the other Transactions.
(ii) Notwithstanding anything in this Agreement to the foregoingcontrary, Merger Sub (A) may, in its sole discretion (subject to the obligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), without the consent of the Company, but subject to extend the Company's right to terminate this Agreement pursuant to Section 8.1(b)(iiOffer on one or more occasions for a period of five (5) Business Days on each such occasion if, on any then-scheduled Expiration Date (defined in Exhibit A), (i) extend the Offer, if at the scheduled expiration date any of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Conditions shall not be satisfiedsatisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC") or ”), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: (A) in the event it would otherwise be entitled required to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, beyond the Outside Date or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 at any time that Parent or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it Merger Sub is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iii) In addition to the extension obligation set forth in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicableSection 1.1(a)(ii)(B); provided , Parent and Merger Sub agree that if -------- on any such condition scheduled Expiration Date of the Offer, the Minimum Tender Condition is not satisfied by but all of the date so chosen by the Companyother Offer Conditions set forth in Exhibit A are satisfied or, the Company may request and in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall make further extensions cause Merger Sub to, on each of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any first two such scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companydates, extend the Offer for periods of five (5) Business Days on each such period as may occasion; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times, for five (5) Business Days on each such occasion, and in no event shall Merger Sub be requested by required to extend the Company not Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to exceed ten business days from such scheduled expiration date. Subject terminate this Agreement pursuant to ARTICLE VIII.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.soon as
Appears in 2 contracts
Sources: Merger Agreement (Endo Pharmaceuticals Holdings Inc), Merger Agreement (Penwest Pharmaceuticals Co)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with SECTION 8.1 and subject to the other provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including five (5) Business Days (as defined below) after the date of the public announcement of this Agreement, Merger Acquisition Sub shall, and Parent Purchaser shall cause Merger Acquisition Sub to, commence the Offer. The initial scheduled expiration date for the Offer shall be twenty (20) Business Days following the commencement of the Offer. The obligation of Merger Acquisition Sub to, and of Parent Purchaser to cause Merger Acquisition Sub to, commence the Offer and accept for payment, and pay for, any shares Shares of Company Common Stock properly tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit ANNEX A attached hereto (the "OFFER CONDITIONS"), any of which may be waived waived, in whole or in part, by Merger Sub Acquisition Sub, in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (discretion except as defined in Exhibit A)) and to the terms and conditions of this Agreementset forth below. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Acquisition Sub expressly reserves the right to modify the terms of the OfferOffer in a manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (i) waive or otherwise modify the Minimum Condition (as defined in ANNEX A attached hereto) so as to reduce the minimum number of shares Shares that Acquisition Sub will accept in the Offer to an amount constituting less than sixty-six and two-thirds percent (66 2/3%) of Common Stock subject to the Offeraggregate outstanding Shares, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Per Share Amount, (iii) modify or add impose any conditions to the conditions set forth Offer in Exhibit Aaddition to the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend reduce the maximum number of Shares to be purchased, or modify (vii) amend, add to or waive (except to the extent expressly permitted by this Agreement) any other term of the Offer in any a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares of Company Common Stock. Notwithstanding the foregoing, Merger Acquisition Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer if, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived but, in any event, Acquisition Sub shall not, without the prior written consent of the Company, extend the Offer beyond the Cut-Off Date (as defined in SECTION 8.1(b) hereof) or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.the
Appears in 2 contracts
Sources: Merger Agreement (Serengeti Eyewear Inc), Merger Agreement (Sunshine Acquisition Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth ten business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent and U.S. Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligation obligations of Merger Sub to, and of Parent and U.S. Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent A. The initial expiration date of the Company, Merger Sub Offer shall not waive be midnight New York City time on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-1(g)(3) of the OfferSecurities Exchange Act of 1934, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderas amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right right, in its sole discretion, to waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit AA or modify any condition set forth in Exhibit A in any manner adverse to the holders of the Company Common Stock, (iv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, in its sole discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in In addition, if at the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with any condition to the terms of this Section 1.1(a); and (B) in the event that Offer is not satisfied, Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyand Parent and U.S. Parent shall cause Merger Sub to, extend the Offer for one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company); provided, however, that Merger Sub shall not be required to, and Parent and U.S. Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. In addition, Merger Sub may and, if requested by the Company Company, Merger Sub shall, make available one or more “subsequent offering periods”, in accordance with Rule 14d-11 of the Exchange Act, of not to exceed less than ten business days from such scheduled expiration datedays. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent and U.S. Parent shall cause Merger Sub to, pay for (subject to any withholding of Tax pursuant to Section 2.02(h)) all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent, U.S. Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent, U.S. Parent and Merger Sub all material respects with information concerning the requirements of Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and to be set forth in the Offer Documents on the date first publishedor reasonably requested by Parent, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by U.S. Parent or and Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentstherein. Each of Parent, U.S. Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent, U.S. Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and 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 ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent, U.S. Parent and Merger Sub agree to shall provide the Company and its counsel in writing any comments that Parent, U.S. Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent, U.S. Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent, U.S. Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel, recognizing that the ultimate form and content of the Offer Documents and the response to any comments of the SEC will be the responsibility of Parent, U.S. Parent and Merger Sub.
(c) Parent and U.S. Parent shall contribute 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (Cgi Group Inc), Merger Agreement (Stanley, Inc.)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth five (5) business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer to purchase all of the outstanding shares of Company Common Stock; provided, that the Company agrees that no shares of Company Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rule 14d-1(g)(3) under the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any 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 shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (D) add to the Offer (other than by increasing the cash offer price) Conditions, or (viE) otherwise amend or modify any term of the Offer in any manner adverse to the holders of Company Common Stock.
(ii) Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, any of the Company's stockholders. The initial expiration date shall be September 15conditions to the offer (including the Minimum Tender Condition and the other conditions and requirements set forth herein and in Exhibit A) is not satisfied or, 1997. Notwithstanding the foregoingin Merger Sub’s sole discretion, waived, then Merger Sub mayshall, without and Parent shall cause Merger Sub to, extend the consent Offer for successive periods of time to be determined at the sole discretion of the CompanyMerger Sub; provided, but subject however, that in no event shall Merger Sub be required to extend the Company's right Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Section 8.1(b)(ii), ARTICLE VIII.
(iiii) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that as soon as practicable after Merger Sub becomes obligated is legally permitted to purchase do so under applicable Law. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; providedOffer is referred to in this Agreement as the “Offer Closing”, however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (up to 20 calendar daysas defined below) as the Company may request. No such request shall be made by the Company ifmay, in its Merger Sub’s sole judgmentdiscretion, it concludes that the Merger could be consummated on or prior to October 6, 1997provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated 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 stockholders of the circumstances under which they were made, not misleading, except that no representation is made Company as and to the extent required by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsfederal securities laws. Each of Parent, Merger Sub and the Company agrees shall promptly to 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 become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 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 applicable Federal federal securities laws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given a reasonable opportunity 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 SEC, on the other hand. Prior to review the filing of the Offer Documents and all amendments and supplements thereto prior to their filing (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 Merger Sub agree to shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. In the event that Parent or Merger Sub receives any comments Parent, Merger Sub or their counsel 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 to such comments and (ii) take all other actions necessary to resolve the receipt of such commentsissues raised therein.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds consideration 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 and shall cause Merger Sub to perform any fulfill all of its other Merger Sub’s obligations pursuant to under this Agreement.
(d) Parent, Merger Sub or the paying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Paying Agent is required to deduct and 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, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 2 contracts
Sources: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Nupathe Inc.)
The Offer. (a) Subject to the provisions of this Agreement, and provided that none of the events set forth in clauses (iii)(A), (iii)(B), (iii)(C) or (iii)(D) of Annex II to this Agreement has occurred and is continuing, as promptly as practicable but and in any event no event later more than the fifth business day from and including ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub Offeror shall, and Parent shall cause Merger Sub Offeror to, commence commence, within the meaning of Rule l4d-2 under the Securities Exchange Act of 1934 (the “Exchange Act”), the Offer. The obligation of Merger Sub Offeror to, and of Parent to cause Merger Sub Offeror to, commence the Offer and accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit A Annex II (any of which may be waived by Merger Sub in its sole discretion, the “Tender Offer Conditions”); provided thatthat Parent and Offeror may, without the consent of the CompanyCompany (but, Merger Sub shall not for the avoidance of doubt, subject to Sections 1.01(c) and 1.01(d)), increase the Offer Price and waive any of the Tender Offer Conditions (other than the Minimum Condition (as defined in Exhibit A)Tender Condition, which may not be waived without the prior written consent of the Company) and to make changes in the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, Offer except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce neither Offeror nor Parent may change the form of consideration to be paid, decrease the Offer Price or the number of shares of Company Common Stock subject sought to be purchased in the Offer, impose additional conditions to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to time period during which the Offer (except pursuant to Section 3.4)shall remain open, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any of the Tender Offer Conditions or amend any other term of the Offer in any manner adverse to any the holders of the Company's stockholdersshares of Company Common Stock. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied Company agrees that no Cancelled Shares or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Remaining Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On As promptly as practicable and in any event no more than ten (10) Business Days after the date of commencement of the Offerthis Agreement, Parent and Merger Sub Offeror shall file with the SEC U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule 14D-1 TO (as amended and supplemented from time to time, the “Schedule TO”) with respect to the Offer, which shall comply in all material respects with the provisions of applicable federal securities Laws, and shall contain an or incorporate by reference the offer to purchase relating to the Offer and a forms of the related letter of transmittal and summary advertisement other appropriate documents (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934documents, as amended (or supplemented from time to time, are referred to herein collectively as the "“Offer Documents”). Parent and Offeror further agree to disseminate the Offer Documents to holders of shares of Company Common Stock as and to the extent required by applicable federal securities Laws. The Company shall promptly provide to Parent and Offeror all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required under the Exchange Act". The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents, and Parent and Offeror shall give reasonable and good faith consideration to any comments made by the Company and its counsel prior to their filing with the SEC (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Offeror agree to provide the Company (in writing, if written), and to consult with the ------------ rules Company and regulations promulgated thereunder and its counsel regarding, any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents on the date first published, sent or promptly after receipt thereof and any responses thereto. The Company and its counsel shall be given a reasonable opportunity to the Company's stockholders, shall not contain review any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentssuch written and oral comments and proposed responses. Each of Parent, Merger Sub Offeror and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Offeror further agrees 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 to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsLaw.
(c) Unless this Agreement shall have been terminated pursuant to Section 8.01, the “initial scheduled expiration date of the Offer” shall be twenty (20) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after (and including the day of) the date of its commencement (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Offeror shall not, and Parent agrees that it shall cause Offeror not to, terminate or withdraw the Offer other than in accordance with the terms of this Agreement. Offeror and Parent may, without receiving the consent of the Company, extend the Expiration Date for any period required by applicable rules and regulations of the SEC, the NASDAQ Global Market or any other stock exchange or automated quotation system applicable to the Offer. Notwithstanding the foregoing, Parent and Offeror shall, unless this Agreement shall have been terminated pursuant to Section 8.01, extend the Offer from time to time if at any scheduled Expiration Date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived; provided that such extension shall be for a period that is not more than ten (10) Business Days after such previously scheduled Expiration Date (unless otherwise reasonably agreed by the parties). In the event the Acceptance Date occurs but Parent does not acquire a number of shares of Company Common Stock sufficient to enable a Short Form Merger to occur (assuming exercise of the Top-Up Option in full), Offeror may, without the consent of the Company, undertake one or more “subsequent offering periods” for the Offer in accordance with Rule 14d-11 under the Exchange Act for a number of days to be determined by Parent, which shall be not less than three (3) nor more than twenty (20) Business Days in the aggregate (it being understood that any “subsequent offering period” shall not extend the Expiration Date).
(d) Subject to the satisfaction (or, to the extent permitted by this Agreement, waiver by Parent or Offeror) of the Tender Offer Conditions, Offeror shall, and Parent shall contribute cause Offeror to, immediately accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to Merger Sub the Offer (the first date of acceptance for payment and payment, the “Acceptance Date” and the time of acceptance for payment and payment on the Acceptance Date, the “Acceptance Time”) on or after the Expiration Date. If Offeror shall commence a subsequent offering period in connection with the Offer, Offeror shall immediately accept for payment and pay as soon as possible for all additional shares of Company Common Stock tendered during such subsequent offering period, subject to and in compliance with the requirements of Rule 14d-11(e) under the Exchange Act. Parent shall provide or cause to be provided to Offeror on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub Offeror becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (Greenfield Online Inc), Merger Agreement (Microsoft Corp)
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event event, subject to the Company having timely provided any information required to be provided by it pursuant to Section 1.1(e) and Section 1.2(c)), later than ten (10) Business Days after the fifth business day from and including the date of the initial public announcement of this Agreement), 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 SEC.
(b) The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and thereafter pay for, any shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any collectively, the “Offer Conditions”). The Offer shall initially be scheduled to expire at one minute after 11:59 p.m., New York City time, on the 20th business day (determined using Rule 14d-1(g)(3) of which may be waived by the Exchange Act) following the commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer. Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer in its sole discretionany manner not inconsistent with this Agreement, provided except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iv) waive, amend or modify the Minimum Tender Condition, the Regulatory Condition, the Absence of Legal Restraint Condition or the Termination Condition, (v) impose conditions or requirements to the Offer (other than by increasing the cash offer price) Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Shares (in their capacity as such), (vi) except as otherwise provided in this Section 1.1, terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vii) otherwise amend, modify or supplement any term of the terms of the Offer in any manner adverse to the holders of Shares or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without and Parent shall cause Merger Sub to, on the consent of the Company, but terms and subject to the Company's right to terminate Offer Conditions and conditions of the Offer and this Agreement pursuant to Section 8.1(b)(ii)Agreement, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be mutually agreed by Parent and the Company), if at the scheduled expiration date time of the Offer the Minimum Offer Condition or any of the conditions to Merger Sub's obligation to purchase shares of Common Stock other Offer Conditions shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or and (iiB) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees ; provided, however, that: (A) in , notwithstanding the event it would foregoing, if at the otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more time of the Offer, each Offer Condition (other than the Minimum Tender Condition and any conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A that by their nature are to be satisfied or waived, it shall give the Company notice thereof and, at the request expiration of the Company, if such conditions are reasonably likely to Offer and that would be capable of being satisfied during or waived by Parent were the requested extension period, extend expiration of the Offer until the earlier of (1to occur at such time) such time as such condition is, or conditions are, shall have been satisfied or waived and (2) the date chosen by the Company, which Minimum Tender Condition shall not be later than (x) December 31have been satisfied, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub and Parent shall make further extensions of have no obligation to extend the Offer in accordance such circumstances on more than three (3) occasions, with each such extension to be for ten (10) Business Days unless the terms of this Section 1.1(a)Company agrees otherwise in writing; and (B) provided further that in the event that no circumstances shall Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, or Parent extend the Offer for such period as may be requested by that the Company not to exceed ten business days from such scheduled expiration date. Subject to Acceptance Time would occur beyond the End Date.
(c) On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay (i) accept for payment all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer (and in any event prior to 8:00 a.m., New York City time, on the first Business Day starting at (if the expiration time occurs on a Business Day) or following (if the expiration time does not occur on a Business Day) the expiration time of the Offer; provided) (the time of such acceptance, however, that notwithstanding the -------- ------- foregoing Parent may“Acceptance Time”) and (ii) pay the Offer Price for such Shares promptly after (and, in any event, no later than the second Business Day after) the Acceptance Time.
(d) The Offer may not be terminated prior to its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that (as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1may be extended in accordance with this Section 1.1), 1997unless this Agreement is validly terminated in accordance with Section 7.1. If this Agreement is validly terminated in accordance with Section 7.1, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at and Parent shall cause Merger Sub to, immediately, irrevocably and unconditionally terminate the request of Offer, and Merger Sub shall neither acquire nor pay for Shares pursuant to the Company, extend Offer. If the Offer for such number is terminated or withdrawn by Merger Sub in accordance with the terms of days (up this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and Parent and Merger Sub shall cause any depository acting on behalf of Merger Sub to 20 calendar days) as return, all tendered Shares to the Company may requestregistered holders thereof. No such request Nothing contained in this Section 1.1 shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 7.1.
(be) On As promptly as reasonably practicable on the date of commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement tender offer statement on Schedule 14D-1 TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any exhibits, supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents ”) and shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Shares as and to the extent required by applicable U.S. federal securities Laws. The Company shall not contain any untrue statement of a material fact or omit furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaws. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after a Change of Recommendation, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or its staff or the dissemination thereof to the holders of Shares, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(cf) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any Offer.
(g) Without limiting the other provisions of its other obligations pursuant to this Agreement, if, between the date of this Agreement and the Acceptance Time, the outstanding Shares shall have been changed into a different number of shares or a different class of shares by reason of any stock dividend, subdivision, reorganization, reclassification, recapitalization, stock split, reverse stock split, combination, exchange of shares or other similar transaction, then the Offer Price shall be equitably adjusted, without duplication, to proportionally reflect such change.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
The Offer. (a) Subject to the provisions conditions of this ---------- Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the written consent of the Company, Merger Sub shall may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th business day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(e)(6) of the SEC). Merger Sub expressly reserves the right to 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 price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit AA in any manner adverse to the holders of Company Common Stock, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for a period of not more than five business days beyond the initial expiration date of the Offer, if on the date of such extension the Minimum Tender Condition has been satisfied but less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain and (iv) extend the Offer for any material regulatory approval applicable to reason for a period of not more than two business days beyond the Offer. Merger Sub agrees that: (A) in the event it latest expiration date that would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs permitted under clause (ai) or (giii) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied this sentence (it being understood that the Company shall Sub may not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by pursuant to this clause (iv) if it has previously extended the Company not Offer pursuant to exceed ten business days from such scheduled expiration dateclause (ii) of this sentence). Subject to 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 of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Diatide Inc), Merger Agreement (Schering Berlin Inc)
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as practicable after the date hereof, but in no event later than the fifth business tenth calendar day from and including after the date of the first public announcement of the execution and delivery of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub toto commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (including the Offerrules and regulations promulgated thereunder, the “Exchange Act”)) the Offer to purchase for cash all Shares at the Offer Price. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares tendered and not validly withdrawn pursuant to the Offer shall be subject only to (i) the satisfaction of the Minimum Condition (as defined in Exhibit A hereto) and (ii) the satisfaction or waiver by Parent or Merger Sub of each of the other conditions set forth in Exhibit A hereto (any together with the Minimum Condition, the “Offer Conditions”). Each of which may be waived by Parent and Merger Sub expressly reserves the right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition or (C) modify any of the other terms or conditions of the Offer, except that, unless otherwise provided thatby this Agreement, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) Parent and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i1) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v2) change the form of consideration payable in the Offer (other than by increasing adding consideration), (3) reduce the cash offer pricenumber of Shares subject to the Offer, (4) impose additional conditions to the Offer, (5) waive or change the Minimum Condition, (6) add to the Offer Conditions, (7) extend or otherwise change the expiration time of the Offer except as required or permitted by Section 1.1(b) or (vi) 8) amend or modify any Offer Condition or any term of the Offer in any a manner that is, or would reasonably be expected to be, adverse to any the holders of Shares.
(b) 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 Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Company's stockholders. The initial expiration Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date shall be September 15and time to which the Offer has been so extended (the Initial Expiration Date, 1997. or such later date and time to which the Initial Expiration Date has been so extended, the “Expiration Date”).
(c) Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but unless this Agreement has been terminated in accordance with Article VIII (and subject to the Company's each party’s right to terminate this Agreement pursuant to Section 8.1(b)(iiin accordance with Article VIII), the Offer shall be extended from time to time as follows:
(i) If, on or prior to any then scheduled Expiration Date, the Offer Conditions shall not have been satisfied or waived by Parent or Merger Sub if permitted hereunder and to the extent permitted by applicable Law, then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer, if at the scheduled expiration date Offer for successive periods of up to ten Business Days each until the Offer any of the conditions to Conditions are satisfied or waived; provided, however, that Merger Sub's obligation to purchase shares of Common Stock Sub shall not be satisfied, until such time as such conditions are satisfied or waived or required to extend the Offer beyond the Outside Date.
(ii) Merger Sub shall extend the Offer for any period or periods required by any rule, regulationapplicable Law, interpretation or position of the Securities and Exchange Commission (or its staff) (the "“SEC"”) or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. NASDAQ Capital Market (“NASDAQ”).
(d) Merger Sub agrees that: (A) in the event it would otherwise be entitled to shall not terminate the Offer at prior to any scheduled expiration thereof due to Expiration Date without the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request prior written consent of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement except in the event that this Agreement is terminated in accordance with Article VIII. In the Company event that this Agreement is terminated in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companyaccordance with Article VIII, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination), terminate the Offer. 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 depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof.
(e) Subject to the terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of Expiration Date or as soon as practicable following the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997valid tender thereof.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Omron Corp /Fi), Merger Agreement (Adept Technology Inc)
The Offer. (a) Subject to the provisions conditions of this --------- Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to, --- and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Company Capital Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub Sub, in its sole discretion, provided that, without the consent of the Company, Merger -------- Sub shall may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and other conditions of in this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to the OfferOffer shall be January 5, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder2000. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Company Capital Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) reduce the price per share of Company Preferred Stock to be paid pursuant to the Offer, (iv) modify or add to the conditions set forth in Exhibit A, (ivv) except as provided in the remainder of this Section 1.1, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner materially adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Capital Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if if, at the scheduled expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Company Capital Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer and (iii) extend the Offer for any reason for a period (a "Parent Extension Period") of not more than 10 ----------------------- business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence or that results from an extension of the Offer requested by the Company pursuant to the next sentence; provided, however, that if Sub extends the Offer pursuant to clause (iii) of -------- ------- this sentence, it shall waive during any such Parent Extension Period all conditions of the Offer set forth in order Exhibit A other than (x) the Minimum Tender Condition and (y) the condition in paragraph (b) of Exhibit A solely to obtain the extent Parent and Sub would violate any material regulatory approval applicable Applicable Law (as defined in Section 3.05(a)) or Judgment (as defined in Section 3.05(a)) in purchasing shares of Company Common Stock pursuant to the Offer. Merger Sub agrees that: (A) in If any of the event it would otherwise be entitled to terminate conditions of the Offer at set forth in Exhibit A (other than the Minimum Tender Condition) is not satisfied or waived on any scheduled expiration thereof due to the failure of one or more date of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedOffer, it shall give the Company notice thereof and, at the request of the Companythen, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which Sub shall not extend the Offer one or more times (the period of each such extension to be later than (xdetermined by Sub) December 31, 1997 or (y) for up to 30 days in the date on which the Company reasonably believes aggregate for all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementextensions, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- at the time of such extension any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions reasonably capable of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be being satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to 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 of Common Company Capital Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub --------------- and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 to be disseminated to the Company's stockholders, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Tj International Inc), Agreement and Plan of Merger (Weyerhaeuser Co)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the Offer. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived in whole or in part by Merger Sub Purchaser in its sole discretion), provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub Purchaser expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the CompanyCompany or as expressly permitted by this Agreement, Merger Sub Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Per Share Amount, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this following sentence or in Section 1.11.01(b), extend the term of the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify make any term of the Offer in any manner other modifications that are otherwise materially adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at term of the Offer beyond any scheduled expiration date of the Offer if, at any such scheduled expiration date, any of the conditions to Merger SubPurchaser's obligation to purchase accept for payment, and pay for, shares of Company Common Stock tendered pursuant to the Offer shall not be satisfied, until such time as such conditions are have been satisfied or waived or (iiprovided, however, that Purchaser may extend the Offer under this clause (A) on not more than one occasion and for not more than ten business days on such occasion) and (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or any other applicable Law.
(b) Notwithstanding any other provision contained herein, including, without limitation, Section 1.01(a), in order to obtain the event the Minimum Condition (as defined in Exhibit A) is not satisfied on any material regulatory approval applicable to scheduled expiration date of the Offer. Merger Sub agrees that: , the Purchaser may either (x) extend the Offer pursuant to clause (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first last sentence of the introductory paragraph or paragraphs (aSection 1.01(a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) amend the Offer to provide that, in the event (i) the Minimum Condition is not satisfied at the next scheduled expiration date of the Offer (after giving effect to the issuance of any shares of Company Common Stock theretofore issued under the Stock Option Agreement) and (ii) the number of shares of Company Common Stock tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is more than 50% of the then outstanding shares of Company Common Stock, Purchaser must waive the Minimum Condition and amend the Offer to reduce the number of shares of Company Common Stock subject to the Offer to 49.9% of the shares of Company Common Stock then outstanding (the "Revised Minimum Number") and, if a greater number of shares is tendered into the Offer and not withdrawn, purchase, on which a pro rata basis, the Company reasonably believes all such conditions will be satisfied Revised Minimum Number of shares (it being understood that the Company Purchaser shall not in any event be entitled required to make such request accept for payment, 9 3 or pay for, any shares of Company Common Stock if it is then less than the Revised Minimum Number of shares are tendered pursuant to the Offer and not withdrawn at the expiration date).
(c) The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in breach of this Agreementcash, upon the terms and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right subject to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided. Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to pay for any shares of Company Common Stock that Purchaser becomes obligated to accept for payment, howeverand pay for, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not pursuant to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(bd) On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Purchaser agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents and, on the date filed with the SEC and when first published, sent or given to the Company's stockholdersshareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsDocuments or incorporated therein by reference to any statement, report or other document filed by or on behalf of the Company with the SEC. Each of Parent, Merger Sub Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be filed with the SEC and to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders shareholders of the Company. Parent and Merger Sub Purchaser agree to provide the Company and its counsel any comments Parent, Merger Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel an opportunity to participate in the response of Parent and/or Purchaser to such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Ebv Electronics Inc), Merger Agreement (Wyle Electronics)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have been terminated in no event later than the fifth business day from accordance with Article VII and including the date none of the public announcement events or conditions set forth in Annex A (other than clause (e) of this Agreement, Annex A) shall have occurred and be existing and shall not have been waived by Parent or Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to (the conditions set forth in Exhibit A (any of which may be waived by Annex A, the “Tender Offer Conditions”), Merger Sub shall commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)), as promptly as reasonably practicable after the date of this Agreement and in its sole discretionany event within 8 Business Days after the date of this Agreement, provided that, without the Offer. Without the prior written consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to decrease the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose conditions to the Offer (in addition to the Tender Offer Conditions, change or waive the Minimum Condition or, except as provided in Section 1.01(c), extend the expiration of the Offer beyond the initial Expiration Date, or amend any other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any a manner adverse to the Company Stockholders; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any condition of the Offer, except the Minimum Condition. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer.
(b) Merger Sub shall file with the U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule TO with respect to the Offer on the date that the Offer is commenced, which Tender Offer Statement shall include an offer to purchase, form of transmittal letter and form of notice of guaranteed delivery (together with any supplements or amendments thereto, collectively, the “Offer Documents”) and, subject to the Company's stockholders’s compliance with Section 1.02(c), cause the Offer Documents to be disseminated to the Company Stockholders in accordance with the applicable requirements of the U.S. federal securities laws. The initial expiration date Company, Parent and Merger Sub each agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect, and Parent further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the Company Stockholders to the extent required by applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(b). The Company and its counsel shall be September 15given the opportunity to review and comment on the Offer Documents sufficiently in advance of filing with the SEC or dissemination to the Company Stockholders.
(c) Subject to the terms and conditions thereof, 1997. Notwithstanding the foregoingOffer shall remain open until midnight, New York City time, at the end of the 20th Business Day after the date that the Offer is commenced (the “Expiration Date”), unless Merger Sub shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the two succeeding sentences or as may be required by applicable Law, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended may expire; provided, however, that Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer for one or more periods of not more than five Business Days if, if at the scheduled expiration date of the Offer Expiration Date, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfied, until such time as such conditions are have been satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff of the SEC (the “SEC Staff”) thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; or (Aiii) if all of the Tender Offer Conditions are satisfied but the number of shares of Company Common Stock that have been validly tendered and not withdrawn in the event it would otherwise be entitled to terminate the Offer at Offer, together with any scheduled expiration thereof due to the failure shares of one or more Company Common Stock then owned by Parent, is less than 90% of the conditions set forth outstanding shares of Company Common Stock, commence a subsequent offering period (as provided in Rule 14d-11 under the first sentence Exchange Act) for three to 20 Business Days to acquire outstanding shares of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs Common Stock.
(d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Tender Offer and this AgreementConditions, Merger Sub shall, and Parent shall cause Merger Sub it to, as soon as practicable after the Expiration Date, accept for payment and pay for (after giving effect to any required withholding Tax) all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer that Offer. If Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, shall commence a subsequent offering period in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of connection with the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect accept for payment and pay for (after giving effect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in required withholding Tax) all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any additional shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreementvalidly tendered during such subsequent offering period.
Appears in 2 contracts
Sources: Merger Agreement (Cardinal Health Inc), Merger Agreement (Viasys Healthcare Inc)
The Offer. (a) Subject to (i) Provided that this Agreement shall not have been terminated in accordance with ARTICLE IX and that none of the provisions events set forth in Paragraph 2 of this AgreementExhibit B hereto shall exist or have occurred, as Purchaser shall, and Parent shall cause Purchaser to, promptly as practicable (but in no event later than the fifth business day from and including ten Business Days following the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, ) commence (within the Offer. The obligation meaning of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) the Offer to purchase all outstanding Shares, at the Offer Price. The obligations of Purchaser to, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first publishedof Parent to cause Purchaser to, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing accept for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if payment and to the extent that such information shall have become false or misleading in pay for any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase Shares tendered pursuant to the Offer and shall be subject to perform only those conditions set forth in Exhibit B (the “Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any Offer Condition or modify or amend the terms of its other obligations the Offer, including an increase in the Offer Price, except that, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to this Agreementthe Offer, (C) amend or waive the Minimum Tender Condition (as defined in Exhibit B), (D) add to the conditions set forth on Exhibit B, (E) modify the conditions set forth on Exhibit B in a manner adverse to the holders of Shares, (F) extend the expiration of the Offer except as required or permitted by Section 1.1(a)(ii) or (iii), or (G) make any other change in the terms or conditions of the Offer which is adverse to the holders of Shares.
Appears in 2 contracts
Sources: Merger Agreement (Excel Technology Inc), Merger Agreement (Gsi Group Inc)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the provisions of this Agreementevents or conditions set forth in Article 6 shall have occurred and be existing, as promptly as practicable after the date hereof (but in no event later than the fifth business day from and including the date of after the public announcement of the terms of this Agreement, Merger Sub shallAcquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, and Parent shall cause Merger Sub toas amended (the "Exchange Act"), commence the Offer. The obligation of Merger Sub to, and of Parent Offer will be made pursuant to cause Merger Sub to, commence the Offer Documents (as defined below) containing terms and conditions set forth in this Agreement. Acquisition shall accept for payment, purchase and pay forfor all Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following expiration of the Offer that all conditions to the Offer set forth in Article 6 shall have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, any shares of Common Stock purchase and pay for Shares tendered pursuant to the Offer shall be subject only to the condition that at least a majority of the issued and outstanding Shares be validly tendered (the "Minimum Condition") and the other conditions set forth in Exhibit A 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). 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 which may its subsidiaries will be waived by Merger Sub tendered in its sole discretionthe Offer.
(b) Subject to the terms and conditions thereof, provided thatthe Offer shall expire at midnight, New York City time, on the date that is twenty (20) business days after the date the Offer is commenced (the "Initial Expiration Date"); provided, however, without the consent of the CompanyBoard, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and Parent may cause Acquisition to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject from time to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date Initial Expiration Date of the Offer any of the conditions to Merger Sub's obligation the Offer necessary to purchase shares of Common Stock shall consummate the Offer have not be satisfiedbeen satisfied or waived (other than the Minimum Condition, to which this clause does not apply), until such time as such conditions are satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer; or (iii) if all of the conditions to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) but the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach number of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock Shares validly tendered and not withdrawn pursuant is less than ninety percent (90%) of the then outstanding number of Shares on a fully diluted basis, for an aggregate period not to exceed twenty (20) business days (for all such extensions), provided that Acquisition shall accept and promptly pay for all securities tendered prior to the Offer date of such extension and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in connection with each such extension. In addition, Parent and Acquisition agree that Merger Sub becomes obligated Acquisition shall from time to purchase pursuant to the Offer immediately after the expiration of time extend the Offer; provided, howeverif requested by the Company, that notwithstanding if at the -------- ------- foregoing Parent may, in its sole discretion, extend the Initial Expiration Date (or any extended expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997Offer, if Parent reasonably believes that as a result of such extension 90% or more applicable), any of the Shares will be tendered conditions to the Offer other than (or in addition to) the Offer. If, at any scheduled expiration date prior to October 1, 1997, there Minimum Condition shall not have been tenderedwaived or satisfied, and not withdrawnuntil (taking into account all such extensions) September 30, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 19972000.
(bc) On As soon as practicable after the date of commencement of the Offer, Parent and Merger Sub Acquisition shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain include an offer to purchase and a related letter form of transmittal and summary advertisement letter (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any amendments thereof or supplements or amendments thereto, collectively the "Offer Documents"). The Offer --------------- Documents shall will comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsapplicable federal securities laws. Each of Parent, Merger Sub Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub Acquisition agree to provide to the Company and its counsel any comments or other communications which Parent, Merger Sub Acquisition or their counsel may receive receives from the staff of the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsthereof.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Prism Financial Corp), Merger Agreement (Prism Financial Corp)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the SEC); provided, however, that the obligation of 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 tendered pursuant to the Offer shall be is subject only to the conditions set forth in Exhibit A Annex 1 (any or all of which may (other than the Minimum Tender Condition) may, subject to the provisions hereof, be waived by Merger Sub in its sole discretionParent or Sub, provided that, without the consent subject to applicable Law). The initial expiration date of the Company, Merger Sub Offer (the EXPIRATION DATE) shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rules 14d-1 and 14d-2 promulgated by the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms and conditions 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 subject sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify reduce or waive the Minimum Tender Condition (defined in Annex 1), (iv) add to the conditions set forth in Exhibit AAnnex 1, (ivv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend or modify any term other condition of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer in increments of not more than ten business days each, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation interpretation, position or position request of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (C) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC). Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate the Offer at that any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Annex 1 is not satisfied or waived, it shall give waived at the Company notice thereof andscheduled Expiration Date, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodSub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of five business days each until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2v) the date chosen by that is 15 days after the Companyinitial Expiration Date, which shall not be later than (w) the satisfaction or waiver of such condition, (x) December 31the determination by Parent that such condition to the Offer is not capable of being satisfied on or prior to the date specified in Section 9.1(b)(ii)(B), 1997 provided that such inability to satisfy such condition is not due to any failure of Parent or Sub to perform in any material respect any covenant or agreement of Parent or Sub contained herein, or the material breach by Parent or Sub of any representation or warranty contained herein, (y) the termination of this Agreement in accordance with its terms and (z) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood specified in Section 9.1(b)(ii)(B); provided, however, that the Company Parent and Sub shall not be entitled required to make such request so extend the Expiration Date if it is then the failure to satisfy any condition set forth in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Annex 1 was caused by or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to resulted from the failure of the Minimum Condition Company to be satisfied, it shall, at the request perform in any material respect any covenant or agreement of the CompanyCompany contained herein, extend or the Offer for such period as may be requested material breach by the Company not to exceed ten business days from such scheduled expiration dateof any representation or warranty contained herein. Subject to 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 accept for all payment shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as it is legally permitted to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997do so under applicable Law.
(b) On the date of commencement of the Offer, Sub shall, and Parent and Merger shall cause Sub shall to, file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"OFFER DOCUMENTS). The Offer --------------- Documents Company shall comply as to form cooperate fully in all material respects with the requirements preparation of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by and the Company in writing for inclusion in and its counsel shall be given a reasonable opportunity to review the Offer DocumentsDocuments before they are filed with the SEC. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent and Sub shall contribute to Merger Sub on a timely basis file with the funds necessary to purchase Commissioner of Commerce of the State of Minnesota any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant registration statement relating to the Offer and required to perform any of its other obligations be filed pursuant to this AgreementChapter 80B of the Minnesota Statutes and shall disseminate to the Company's stockholders 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.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sapphire Expansion CORP), Merger Agreement (Retek Inc)
The Offer. (a) Subject Provided that the Company has fulfilled its obligation to the provisions of this Agreement, provide information to Parent and Merger Sub on a timely basis as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreementcontemplated by Section 2.1(e), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offer. meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, purchase and pay for, for any shares of Common Stock Company Shares tendered pursuant to the Offer shall be subject only to (i) the Minimum Condition and (ii) the other conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderhereto. Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to modify time, in its sole discretion, to waive any such condition (other than the Minimum Condition), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub shall not Company no change may be made that (i) reduce decreases the number of shares of Common Stock subject to price per Company Share payable in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer, (iii) reduces the maximum number of Company Shares sought to be purchased in the Offer, (iv) adds to the conditions to the Offer set forth in Annex A hereto, (v) extends the Offer other than by increasing the cash offer price) as set forth in this Section 2.1, or (vi) amend modifies or modify amends any term of condition to the Offer in any manner materially adverse to the holders of Company Shares.
(c) The Offer initially shall be scheduled to expire twenty (20) Business Days following (and including, if it is a Business Day, the day of) the commencement thereof (the “Expiration Date,” unless extended in accordance with this subsection (c), in which case any expiration time and date established pursuant to an authorized extension of the Company's stockholders. The initial expiration date Offer in accordance with the terms of this Agreement, shall be September 15, 1997the Expiration Date). Notwithstanding anything herein to the foregoingcontrary, Merger Sub may, without (i) at the consent written request of the Company, but subject shall, and Parent shall then cause Merger Sub to, from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, in increments of no more than ten (10) Business Days each, if at the initial or any subsequent scheduled expiration date Expiration Date of the Offer any of the conditions to Merger Sub's ’s obligation to purchase shares of Common Stock accept Company Shares for payment shall not be satisfiedsatisfied or waived, but each such condition is reasonably capable of being satisfied at or prior to the Outside Date, until such time as such conditions are satisfied or waived or to the extent permitted by this Agreement, (ii) shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") , or the staff thereof thereof, applicable --- to the Offer, or (iii) may extend the Offer one time for up to five (5) Business Days if all of the conditions to Merger Sub’s obligation to accept for payment Company Shares are satisfied or waived, but the number of Company Shares validly tendered and not withdrawn pursuant to the Offer is less than ninety percent (90%) of the then outstanding Company Shares on a fully diluted basis at the otherwise scheduled Expiration Date. Notwithstanding the foregoing, no such extension provided for in this Section 2.1(c) shall extend the Offer beyond the Outside Date. In each of the above cases, Parent shall cause Merger Sub to extend the Offer from time to time in accordance with this Section 2.1(c) for the shortest time periods which it reasonably believes are necessary until consummation of the Offer if the conditions of the Offer shall not have been satisfied or waived, so long as this Agreement shall not have been terminated in order accordance with Article VIII hereof.
(d) The Per Share Amount shall, subject to obtain any material regulatory approval applicable withholding of Taxes, be net to the seller of Company Shares in cash, upon the terms and subject to the conditions of the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementshall, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions to, pay the Per Share Amount for all Company Shares validly tendered and not withdrawn promptly following the acceptance of the Offer Company Shares for payment in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration (the date thereof due solely to and time of acceptance for payment of such Company Shares, the failure “Acceptance Time”). If payment of the Minimum Condition Per Share Amount is to be satisfied, it shall, at made to a Person other than the request Person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, extend it shall be a condition of payment that the Offer certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such period as may be requested payment shall have paid all transfer and other Taxes required by reason of the Company not payment of the Per Share Amount to exceed ten business days from such scheduled expiration date. Subject a Person other than the registered holder of the certificate surrendered, or shall have established to the terms and conditions reasonable satisfaction of Merger Sub that such Taxes either have been paid or are not applicable.
(e) As promptly as practicable on the date of commencement of the Offer Offer, and conditioned on Company’s having fulfilled its obligation to provide information to Parent and Merger Sub on a timely basis as contemplated by this AgreementSection 2.1(e), Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents and exhibits included therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all exhibits, supplements or and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). The Merger Sub shall, and Parent shall cause Merger Sub to, use its reasonable best efforts to cause the Offer --------------- Documents to be disseminated to holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Merger Sub shall use their reasonable best efforts to cause the Offer Documents to comply as to form in all material respects with the applicable requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsfederal securities laws. Each of Parent, Merger Sub and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 SEC, and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersholders of Company Shares, in each case in all material respects as and to the extent required by applicable Federal federal securities laws. The Company shall as promptly as practicable furnish to Merger Sub or Parent all information concerning the Company that is required by applicable federal securities laws or reasonably requested by Merger Sub or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(e). Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing Schedule TO before it is filed with the SEC or dissemination to stockholders of the CompanySEC. In addition, Parent and Merger Sub agree to provide the Company and its counsel (i) in writing with any comments comments, whether written or oral, Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and any written or oral responses thereto, and (ii) reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(cf) Parent shall contribute to Merger Sub If, between the date of this Agreement and the date on a timely basis the funds necessary to purchase which any shares of Common Stock that Merger Sub becomes obligated to purchase particular Company Share is accepted for payment and paid for pursuant to the Offer and Offer, the outstanding shares of Company Common Stock are changed into a different number or class of shares by means of any stock split, division or subdivision of shares, stock dividend, reverse stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to perform any of its other obligations pursuant to this Agreementsuch Company Share shall be appropriately adjusted.
Appears in 2 contracts
Sources: Merger Agreement (Blackbaud Inc), Merger Agreement (Convio, Inc.)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of the terms of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. Unless earlier terminated in accordance with the provisions of this Agreement, the Offer shall not expire before 12:00 midnight on the date that is 20 business days from and including the date the Offer is commenced. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer shall be subject to the conditions set forth in clauses (a) through (h) set forth in Exhibit A (any of which may be waived by Sub in its sole discretion, and it being understood for all purposes of this Agreement that the fact that any condition specified in the first paragraph of Exhibit A shall not have been satisfied shall not, without more, constitute a failure of any other condition set forth in Exhibit A) and to the terms and conditions of this Agreement. The obligation of Sub to accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock Share to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next two sentences, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner materially adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Shares (as set forth in Exhibit A) shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain for any material regulatory approval period required by applicable to law and (iii) extend the Offer. Merger Sub agrees that: (A) in Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the event it latest expiration date that would otherwise be entitled permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to terminate the Offer represents less than 90% of the Fully Diluted Shares (as defined in Exhibit A). Sub and Parent agree that if at any scheduled expiration thereof due to the failure of one or more date of the Offer the HSR Condition (as defined in Exhibit A) has not been satisfied, but at such scheduled expiration date all the other conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be shall have been satisfied or waived(other than the Minimum Tender Condition), it shall give the Company notice thereof and, Sub may (and at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, Company (confirmed in writing) shall) extend the Offer (a "Special Extension") from time to time until the earlier of (1) such time as such condition is, HSR Condition has been satisfied. In no event may the Company or conditions are, satisfied or waived and (2) Sub require that the Offer be extended to a date later than 270 days following the date chosen hereof by the Company, which shall not be Special Extensions or to a date later than (x) December 31, 1997 or (y) 180 days following the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- for any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateother reason. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct amend or supplement any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive have received from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (Emersub Lxxiv Inc), Merger Agreement (Daniel Industries Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth ten (10) business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), the Offer. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any the "Offer Conditions"). The initial expiration date of which may the Offer shall be waived by Merger midnight, New York City time, on the 20th business day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub expressly reserves the right to, in its sole discretion, provided thatwaive, without the consent of the Companyin whole or in part, Merger Sub shall not waive the Minimum any Offer Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer; provided, except however, that, without the prior written consent of the CompanyCompany (unless the Company takes any action contemplated by Section 5.02(b)), Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) change, modify or waive the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AA or modify or change any Offer Condition in a manner materially adverse to any holders of Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend or otherwise change the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend otherwise amend, modify or modify supplement any term of the terms of the Offer in any manner materially adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding anything in this Agreement to the foregoingcontrary, Merger Sub may, in its discretion, without the consent of the Company, but subject to (A) without limiting Parent's or Sub's obligations under the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)following sentence, (i) extend the OfferOffer on one or more occasions for any period ending no later than the Termination Date, if at the on any then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfied, until such time as such conditions are satisfied or waived or and (iiB) extend the Offer for any period ending no later than the Termination Date required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Parent and Sub agrees that: (A) in the event it would otherwise be entitled to terminate agree that if not all of the Offer at Conditions are satisfied or, in Sub's sole discretion, waived on any then-scheduled expiration thereof due to the failure of one or more date of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedOffer, it shall give the Company notice thereof andthen, at the request of the Company, if provided that all such conditions are reasonably likely capable of being satisfied by the Termination Date and subject to be satisfied during the requested extension periodrights of Parent under Article VIII, Sub shall, and Parent shall cause Sub to, extend the Offer on one or more occasions, in consecutive increments of up to ten (10) business days each, for an aggregate period of time ending no later than the Termination Date that Parent reasonably believes is necessary for such conditions to be satisfied, until the earlier of (1) such time as such condition isconditions are satisfied; provided, or conditions arehowever, satisfied or waived and (2) the date chosen by the Company, which that Sub shall not be later than (x) December 31required to extend the Offer beyond the Termination Date. In any event, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall Offer may not be entitled terminated prior to make its expiration date (as such request if it is then in breach of this Agreement, expiration date may be extended and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer re-extended in accordance with the terms of this Section 1.1(a1.01(a); and (B) ), unless this Agreement is validly terminated in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateaccordance with Article VIII. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.01(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration date of the Offer; providedOffer (as it may be extended and re-extended in accordance with this Section 1.01(a)). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the "Offer Closing", however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the "Offer Closing Date". Sub expressly reserves the right to, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and "subsequent offering period" in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of accordance with Rule 14d-11 under the Shares will be tendered in Exchange Act following the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tenderedOffer Closing, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer Documents may, in Sub's sole discretion, provide for such number a reservation of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997right.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent and Sub all material respects with information concerning the requirements of Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to 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 become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 to be disseminated to the stockholders of the Company's stockholders, in each case as and to the extent required by applicable Federal securities lawsLaws. The Parent and Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any 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 Sub shall provide the Company a reasonable opportunity to review the and comment on such Offer Documents or response (including the proposed final version thereof), and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree shall give reasonable consideration to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to 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, and shall cause Sub to perform, on a timely basis, all of Sub's obligations under this Agreement.
(d) Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Sub is required to deduct and withhold with respect to perform the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of its other obligations pursuant state, local or foreign tax Law. To the extent that amounts are so withheld and paid over by Sub to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this AgreementAgreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Sub.
Appears in 2 contracts
Sources: Merger Agreement (Kosan Biosciences Inc), Merger Agreement (Bristol Myers Squibb Co)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole reasonable discretion, provided that, without the consent of the Company, Merger except that Sub shall not waive the Minimum Condition (as defined in Exhibit A)) without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify amend or add to the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any other term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2iii) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason on one or more occasions for an aggregate period as may be requested by the Company of not to exceed ten more than 10 business days from such scheduled beyond the latest expiration datedate that would otherwise be permitted under clause (i) or (ii) of this sentence. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholdersshareholders, 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 covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing or any of its shareholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 corrected to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders the shareholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (International Business Machines Corp), Merger Agreement (Software Artistry Inc)
The Offer. (a) Subject to As soon as practicable after the provisions date of this Agreement, as promptly as practicable but and in no any event later than during the fifth period of seven business days beginning on the day from and including the date of the first public announcement of that Parent and the Company have entered into this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, will commence the Offer. The obligation of Merger consideration Sub to, and of Parent to cause Merger Sub to, commence will pay under the Offer for Shares validly tendered and accept for paymentnot subsequently properly withdrawn will be:
(1) $2.84 per Share, and pay for, any shares of Common Stock tendered pursuant net to the Offer shall be subject only to the conditions set forth seller in Exhibit A cash and without interest; or
(any of which may be waived by Merger 2) such greater consideration per Share, if any, as Sub may, in its sole discretion, provided thatoffer in the Offer Documents to pay for each of those Shares. If any party terminates this Agreement under Article Nine at any time prior to the acceptance for payment by Sub of Shares under the Offer, Sub may, in its sole discretion, without the consent of the CompanyCompany and notwithstanding Section 1.01(b) to the contrary, Merger Sub shall not waive the Minimum Condition (as defined make any change in Exhibit A)) and to the terms and conditions of this Agreement. Merger the Offer and revise the Offer Documents accordingly.
(b) The obligation of Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent accept for payment and pay for Shares validly tendered in the right to purchase all or any portion of the Shares tendered pursuant Offer and not subsequently properly withdrawn will be subject to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderOffer Conditions. Merger Sub expressly reserves the right right, in its sole discretion, to modify waive any of the Offer Conditions or make any change in the terms and conditions of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not will not:
(i1) waive or make any change in the Minimum Tender Condition;
(2) reduce the maximum number of shares of Common Stock subject to Shares it will purchase under the Offer, ;
(ii3) reduce the price per share of Common Stock to be paid pursuant to decrease the Offer (except pursuant to Section 3.4)consideration or, (iii) modify or add to the conditions set forth in Exhibit Aother than by adding consideration, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable the Offer consideration; or
(4) make any change in or addition to the Offer Conditions or otherwise amend the Offer in a manner adverse to the holders of Common Stock. For purposes of clause (4) above, none of the following will constitute a change in the Offer in a manner adverse to the holders of Common Stock:
(other than by increasing 1) any increase in or addition to the cash offer priceOffer consideration; or
(2) or (vi) amend or modify any term extension of the Offer beyond the then scheduled Expiration Date:
(A) for any period any applicable Governmental Requirement or any interpretation thereof or position thereunder by the SEC may require;
(B) in any manner adverse to any increments of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offernot more than five business days each, if at the Parent has reasonably determined that any Offering Condition is not capable of being satisfied on or prior to that scheduled expiration date Expiration Date;
(C) for one or more periods, up to a total of the 10 business days for all those periods, if, notwithstanding that all Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions Conditions are satisfied or waived or (ii) extend the Offer for any period required by any ruleSub, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any extent waivable by Sub, as of that scheduled expiration thereof due to the failure Expiration Date, less than 90% of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock outstanding Shares have been validly tendered and not withdrawn pursuant subsequently properly withdrawn; or
(D) for any period or periods, if, prior to the Offer that Merger acceptance for payment by Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of Shares under the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997has terminated this Agreement under Section 9.01(a)(4).
(bc) On As soon as practicable on the date of commencement of the OfferOffer Commencement Date, Parent and Merger Sub shall will file the Schedule TO with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents")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 (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholdersThereafter, in each case as and to the extent required by any applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review law so requires, Parent will:
(1) promptly correct any information in the Offer Documents and or the Schedule 14D-9 which is or has become false or misleading in any material respect concerning it or its Affiliates or the Company, provided that, in the case of information concerning the -2- Company, the Company shall have furnished the corrected information to Parent under Section 1.02(b);
(2) cause the Schedule TO, as so corrected or otherwise changed, to be promptly filed with the SEC; and
(3) take all amendments and supplements thereto prior lawful action necessary to their filing cause the Offer Documents, as originally filed with the SEC and as thereafter so corrected or dissemination otherwise changed, to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect be disseminated to the Offer Documents promptly after the receipt holders of such commentsShares.
(cd) For purposes of Section 7.05, Parent will supply to the Company in writing and be solely responsible for any information concerning Parent and Sub and their nominees, directors, officers and Affiliates which Section 14(f) of the Exchange Act and Exchange Act Rule 14f-1 require be disclosed to the Company's stockholders.
(e) Parent shall contribute will provide to Merger Sub on a timely basis the funds necessary to purchase any shares enable Sub, as soon as practicable after the Offer expires and the satisfaction or waiver of Common Stock that Merger Sub becomes obligated the Offer Conditions, to purchase pursuant to accept for payment and pay for all Shares validly tendered in the Offer and to perform any of its other obligations pursuant to not subsequently properly withdrawn.
(f) In this AgreementSection 1.01, the terms "commence" and "public announcement" have the meanings Exchange Act Rule 14d-2 specifies.
Appears in 2 contracts
Sources: Merger Agreement (Santos Americas & Europe Corp), Merger Agreement (Esenjay Exploration Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997twenty business days from and including the commencement of the Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) ), (f), or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, Company which shall not be later than (x) December 31September 15, 1997, or October 15, 1997 if the option to extend set forth in Section 8.1(b)(ii)(y) is exercised or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable)satisfied; provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the CompanyCompany (which request may be made by the Company only on one occasion), extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, the Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after upon the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Genesis Eldercare Acquisition Corp), Merger Agreement (Multicare Companies Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable practicable, but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and payment or pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent hereto. The initial expiration date of the CompanyOffer shall be January 3, Merger Sub shall not waive the Minimum Condition 2001 (as defined in Exhibit A)determined using Rules 14d-1(g)(3) and to 14d-2 promulgated under the terms and conditions Securities Exchange Act of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent 1934, as amended (the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder"Exchange Act")). Merger Sub expressly reserves the right to waive any condition to the Offer or to modify the terms of the Offer, except thatin each case in its sole discretion; provided, however, that without the 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 price per share of Company Common Stock Share to be paid pursuant to the Offer (except pursuant to Section 3.4)or change the form or time of delivery of consideration, (iii) modify amend or waive the Minimum Tender Condition (as defined in Exhibit A hereto) or add to the conditions set forth in Exhibit AA hereto, (iv) except as provided below in the remainder of this Section 1.11.1(a), extend the Offer, or (v) change otherwise amend the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Shares. Notwithstanding the foregoing, Merger Sub may, at any time and from time to time, and, in each case, subject to Section 8.1 hereof, take one or more of the following actions without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), : (iA) extend the OfferOffer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions to the Offer to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of accept Company Common Stock shall Shares for payment is not be satisfiedsatisfied or waived, until such time as all such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof that is applicable --- to the Offer or in order to obtain any material regulatory approval (C) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable to the Offer. Merger Sub agrees that: date that would otherwise be permitted under clause (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure or (B) of one or more this sentence, if, as of such date, all of the conditions set forth in to Merger Sub's obligation to accept Company Common Shares for payment (including the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be are satisfied or waived, it shall give but the number of Company Common Shares validly tendered and not withdrawn pursuant to the Offer equals less than 90% of the outstanding Company Common Shares (determined on a fully diluted basis for all outstanding stock options, convertible securities and any other rights to acquire Company Common Stock on the date of purchase). Without limiting the rights of Merger Sub to extend the Offer pursuant to the immediately preceding sentence, Parent and Merger Sub agree that if (I) (x) all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, (y) such conditions are reasonably capable of being satisfied within 30 days after the initial expiration date of the Offer and (z) the Company notice is in compliance with all of its covenants in this Agreement, or (II) any rule, regulation, interpretation or position of the SEC or the staff thereof andthat is applicable to the Offer requires an extension of the Offer, at then Merger Sub shall extend the request Offer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions of the Offer to be satisfied, until all such conditions are satisfied or waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the 30th day after the initial expiration date of the Offer, unless otherwise required pursuant to (II) above. Subject to Section 8.1 hereof, Merger Sub may, without the consent of the Company, if such conditions are reasonably likely elect to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the terms Exchange Act, following its acceptance of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely Company Common Shares for payment pursuant to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to 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 of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (such Tender Offer Statement, together with all amendments and supplements thereto, the "Schedule TO"), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included contained therein pursuant to which the Offer will be made, in each case together with any all supplements or and amendments thereto, the "Offer Documents"). The Parent and Merger Sub (i) agree that, on the date on which the Schedule TO is filed with the SEC and on each date on which any amendment or supplement to any Offer --------------- Document is filed 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 (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder thereunder, and the Offer Documents (ii) represent and warrant that, on the date first published, sent or given to Shareholders, the Company's stockholders, shall Offer Documents will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied in writing by or on behalf of the Company in writing or any of its officers or directors specifically for inclusion or incorporation by reference in the any Offer DocumentsDocument. Each of Parent, Parent and Merger Sub and (or the Company, in the case of any information supplied by or on behalf of the Company agrees or any of its officers or directors specifically for inclusion or incorporation by reference in any Offer Document) agree promptly to correct any information provided by it for use contained in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents to reflect such correction and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersShareholders, in each case as and to the extent required by applicable Federal and state securities laws. The Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto (including, without limitation, any amendment or supplement thereto) prior to their filing with the SEC or dissemination to stockholders of the CompanyShareholders. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any written comments (and orally, with any oral comments) that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments.
(c) Parent shall contribute The parties hereto agree to Merger Sub on a timely basis promptly file with the funds necessary to purchase Commonwealth of Massachusetts any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant registration statement relating to the Offer and required to perform any of its other obligations be filed pursuant to this Agreement.Chapter 110C of the Massachusetts
Appears in 2 contracts
Sources: Merger Agreement (Minnesota Mining & Manufacturing Co), Merger Agreement (Minnesota Mining & Manufacturing Co)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth ten business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any the “Offer Conditions”). The initial expiration date of which may the Offer shall be waived by Merger midnight, New York City time, on the 20th business day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub expressly reserves the right to, in its sole discretion, provided thatwaive, without the consent of the Companyin whole or in part, Merger Sub shall not waive the Minimum any Offer Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer; provided, except however, 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 the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) change, modify or waive the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AA or modify any Offer Condition in a manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding anything in this Agreement to the foregoingcontrary, Merger and without limiting Parent’s or Sub’s obligations under the following sentence, Sub (A) may, in its sole discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for any period, if at the on any then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or, in Sub’s sole discretion, waived, until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer; provided, however, that in no event shall Sub be required to extend the Offer beyond the Termination Date. Merger Parent and Sub agrees that: agree that (A) in if, on any then-scheduled expiration date of the event it would otherwise be entitled to terminate Offer, any of the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions Conditions set forth in the first sentence of the introductory paragraph or paragraphs clauses (aii) or through (gvi) of Exhibit A to be is not satisfied or or, in Sub’s sole discretion, waived, it then Sub shall, and Parent shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodcause Sub to, extend the Offer on one or more occasions, in consecutive increments of up to ten business days each, until the earlier of (1) such time as such condition isOffer Conditions are satisfied or, or conditions arein Sub’s sole discretion, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at if, on any then-scheduled expiration date thereof due solely to the failure of the Offer, the Minimum Tender Condition to be satisfiedis not satisfied but all of the other Offer Conditions set forth in Exhibit A are satisfied or, it in Sub’s sole discretion, waived, then Sub shall, at the request of the Companyand Parent shall cause Sub to, extend the Offer for such period as may be requested provided by the Company not terms of Section 8.01(f); provided, however, that in no event shall Sub be required to exceed ten business days from such scheduled expiration dateextend the Offer beyond the Termination Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.01(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.01(a)). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; providedOffer is referred to in this Agreement as the “Offer Closing”, however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days (up to 20 calendar days) as a “subsequent offering period” in accordance with Rule 14d-11 under the Company may request. No such request shall be made by Exchange Act, and the Company ifOffer Documents may, in its Sub’s sole judgmentdiscretion, it concludes that the Merger could be consummated on or prior to October 6, 1997provide for such a reservation of right. Nothing contained in this Section 1.01(a) shall affect any termination rights in Article VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on to be disseminated to the shareholders of the Company as and to the extent required by Federal securities laws. The Company shall promptly after the date first published, sent or given hereof furnish to Parent and Sub all information concerning the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to 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 become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 to be disseminated to the shareholders of the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Parent and Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given 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 SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Sub shall provide the Company a reasonable opportunity to review the and comment on such Offer Documents or response (including the proposed final version thereof), and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree shall give reasonable consideration to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to 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 and shall cause Sub to perform any fulfill all of its other Sub’s obligations pursuant to under this Agreement.
(d) Parent, Sub, the Surviving Corporation 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 of Company Common Stock such amounts as Parent, Sub, the Surviving Corporation 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, local or foreign tax law. To the extent that amounts are so withheld and paid over by Parent, Sub, the Surviving Corporation or the Paying Agent to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Sub, the Surviving Corporation or the Paying Agent.
(e) Sub shall timely file with the Commissioner of Commerce of the State of Minnesota a registration statement related to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes (the “Minnesota Registration Statement”) and shall disseminate the Minnesota Registration Statement as required by Chapter 80B of the Minnesota Statutes. Sub shall promptly file with the Commissioner of Commerce of the State of Minnesota all materials referred to in Section 80B.04 of the Minnesota Statutes that Parent and Sub file with the SEC or otherwise make available to the shareholders of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Mentor Corp /Mn/), Merger Agreement (Johnson & Johnson)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit AOffer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend amend, waive or modify add any other term of the Offer in any manner adverse to any the Company or the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfied, satisfied or waived until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. , (iii) extend the Offer on one or more occasions for an aggregate period of not more than five business days beyond the scheduled or extended expiration date if as of such expiration date sufficient Shares have not been tendered in order for the Merger Sub agrees that: to be effected without a vote of the Company's shareholders pursuant to Section 450.1711 of the MBCA and (Aiv) in extend the event it Offer for any reason on one or more occasions for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs permitted under clause (ai), (ii) or (giii) of Exhibit A to be this sentence. So long as this Agreement is in effect and the Offer Conditions have not been satisfied or waived, it Sub shall, and Parent shall give the Company notice thereof andcause Sub to, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend cause the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in expire. In the event that the Company delivers to Parent a Section 9.1(e) Notice (as defined in Section 9.1(e)), Sub shall extend the Offer to the earlier of (i) a date that is not earlier than seven business days following the date of such delivery, unless the Offer would otherwise not expire prior thereto, or (ii) the termination of this Agreement by the Company pursuant to Section 9.1(e). In the event that Parent delivers to the Company the notice contemplated in breach hereof or the conditions specified in paragraphs paragraph (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the CompanyExhibit A, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company to a date not to exceed ten earlier than two business days from following the end of the 20- day cure period contemplated in such scheduled expiration dateparagraph (d) or (e) or, if earlier, the date on which the breach or failure to perform or comply, as the case may be, is cured, unless the Offer would otherwise not expire prior thereto. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D- 1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders the shareholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Prior to the expiration of the Offer, Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the all funds necessary to purchase accept for payment, and pay for, any shares of Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (Scotsman Industries Inc), Merger Agreement (Kysor Industrial Corp /Mi/)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated pursuant to Article VIII, subject to the provisions of this Agreementfollowing sentence, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Acquisition Sub shall, and Parent shall cause Merger Acquisition Sub to, as promptly as practicable and in no event later than 30 days after the date FINRA declares the Rule 1017 Application(s) “substantially complete,” with prior notice to the Company, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer. The obligation ; provided, however, if as of Merger such date, FINRA has indicated that it is considering imposing material restrictions or limitations on the Company Broker-Dealers pursuant to NASD Rule 1017 as a result of the transactions contemplated by this Agreement, then Acquisition Sub toshall, and of Parent to shall cause Merger Acquisition Sub to, commence the Offer and accept for payment, and pay for, within five days after the parties have resolved any shares of Common Stock tendered pursuant potential material restrictions or limitations to the reasonable satisfaction of Parent. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to the satisfaction or waiver (to the extent permitted by this Agreement and under applicable Laws) of the conditions set forth in Exhibit A Annex B (any of which may be waived by Merger Sub in its sole discretionthe “Tender Offer Conditions”), provided that, without the consent and no other conditions. The initial expiration date of the Company, Merger Sub Offer shall not waive be 12:00 midnight (Eastern Time) at the Minimum Condition end of the day on the date that is 20 business days after the date on which the Offer was commenced (determined as defined provided in Exhibit A)Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Time” and any expiration time and date established pursuant to an extension of the terms and conditions of Offer in accordance with this Agreement, also an Expiration Time). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Acquisition Sub expressly reserves the right (i) to increase the Offer Price and (ii) to waive any condition to the Offer (to the extent permitted by this Agreement and under applicable Laws) or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (iA) reduce the number of shares of Common Stock Shares subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iiiC) modify or add to the conditions set forth Tender Offer Conditions or amend or modify any Tender Offer Condition in Exhibit Aany manner adverse to the holders of Shares, (ivD) except as otherwise provided in the remainder of this Section 1.1, extend the OfferExpiration Time, or (vE) change the form of consideration payable in the Offer Offer, provided, that nothing in this clause (other than by increasing the E) shall limit Acquisition Sub’s ability to provide additional cash offer price) or (vi) amend or modify any term of consideration in addition to the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Price. Notwithstanding the foregoing, Merger (x) Acquisition Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferExpiration Time for one or more consecutive increments of not more than 20 business days each (the length of such period to be determined by Parent or Acquisition Sub), if at the any otherwise scheduled expiration date of the Expiration Time any Tender Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Condition has not be satisfied, until such time as such conditions are been satisfied or waived or (to the extent permitted by this Agreement and under applicable Laws), (ii) extend the Offer Expiration Time for any the minimum period required by any Law or Order, or any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the its staff thereof applicable --- to the Offer or The NASDAQ Stock Market LLC (“NASDAQ”), in order to obtain any material regulatory approval such case which is applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) , or (giii) of Exhibit A to be satisfied or waived, it make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (y) Acquisition Sub shall give (and Parent shall cause Acquisition Sub to) extend the Company notice thereof and, Expiration Time at the request of the Company, if Company for one or more consecutive increments of not more than 20 business days (the length of such conditions are reasonably likely periods to be determined by Parent giving reasonable consideration to the Company’s request) if at any otherwise scheduled Expiration Time any Tender Offer Condition has not been satisfied during or waived (to the requested extent permitted by this Agreement and under applicable Laws); provided that in the case of any extension periodof the Expiration Time pursuant to either (x) or (y) above, such extension shall in no event extend the Offer until Expiration Time to a time later than, the earlier of (1) such time as such condition is, the termination of this Agreement in accordance with its terms or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than Termination Date.
(xb) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Acquisition Sub shall, shall (and Parent shall cause Merger Acquisition Sub to) accept for payment, and pay for for, all shares of Common Stock Shares that are validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of Expiration Time (the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration time and date of the Offer on which Acquisition Sub irrevocably accepts such Shares for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments theretopayment, the "Offer Documents"“Acceptance Time”). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide (or cause Acquisition Sub to Merger Sub provide) on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Acquisition Sub becomes obligated to purchase pursuant to the Offer and to perform any Offer. For purposes of its other obligations pursuant to this Agreement, the term “business day” has the meaning provided in Rule 14d-1(g)(3) under the Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (National Holdings Corp), Merger Agreement (Fortress Biotech, Inc.)
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as reasonable practicable (but in no event later than the fifth business day from and including ten (10) Business Days) after the date of the public announcement execution of this AgreementAgreement by all parties hereto, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A Annex I (any the “Offer Conditions”). The Offer shall initially expire at 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of which may be waived by the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act). Merger Sub expressly reserves the right to waive, in its sole discretionwhole or in part, provided any Offer Condition or modify the terms of the Offer; provided, however, that, without the consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) amend, modify or add to waive the conditions set forth in Exhibit AMinimum Tender Condition, (iv) except as expressly provided in the remainder of this Section 1.11.1(a), extend or otherwise amend or modify the expiration date of the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend otherwise amend, modify or modify supplement any term of the terms of the Offer in any manner adverse to any holder of Common Stock or (vii) provide any “subsequent offering period” within the Company's stockholders. The initial expiration date shall be September 15, 1997meaning of Rule 14d-11 promulgated under the Exchange Act. Notwithstanding any other provision of this Agreement to the foregoing, Merger Sub may, without the consent of the Companycontrary, but subject to the Company's right parties’ rights to terminate this Agreement pursuant to Section 8.1(b)(ii)7.1 and Merger Sub’s right to waive any Offer Condition other than the Minimum Tender Condition, Merger Sub shall, and Parent shall cause Merger Sub to, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if, at any then-scheduled expiration of the Offer, if at any Offer Condition (other than the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as each such conditions are condition shall have been satisfied or waived or waived, and (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. ; provided, however, that in no event shall Merger Sub agrees that: (A) in be required to extend the event it would otherwise be entitled Offer beyond the Termination Date. Notwithstanding any other provision of this Agreement to the contrary, but subject to the parties’ rights to terminate the Offer this Agreement pursuant to Section 7.1, if, at any then-scheduled expiration thereof due to the failure of one or more of the conditions set forth in Offer, each Offer Condition (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be shall have been satisfied or waivedwaived and the Minimum Tender Condition shall not have been satisfied, it shall give the Company notice thereof then Merger Sub may and, at the request of if requested by the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to, extend the Offer until by increments of seven (7) Business Days (or such other period as the earlier of (1) such time as such condition isparties hereto may agree); provided, or conditions arehowever, satisfied or waived and (2) that Merger Sub shall only be required to extend the date chosen by the CompanyOffer under this sentence on two occasions and; provided, which further, that Merger Sub shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled required to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by beyond the Company not to exceed ten business days from such scheduled expiration dateTermination Date. Subject to 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, and pay for for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the applicable expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a)). Acceptance for a period payment of shares of Common Stock by Merger Sub pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing.” The Offer may not be terminated prior to exceed ten business days its expiration date (as such expiration date may be extended and re-extended in no event ending after December 31accordance with this Section 1.1(a)), 1997unless this Agreement is validly terminated in accordance with Section 7.1. If this Agreement is terminated pursuant to Section 7.1, if Parent reasonably believes that as a result then, in each case, Merger Sub shall promptly (and, in any event, within twenty-four (24) hours of such extension 90% or more of termination), irrevocably and unconditionally terminate the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there Offer and Merger Sub shall have been tenderedpromptly return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 promulgated under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”), which shall contain include, as exhibits, an offer to purchase and a related letter of transmittal and transmittal, a summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents and exhibits included therein pursuant to which the Offer will be mademade (such Schedule TO and the documents attached as exhibits thereto, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent and Merger Sub all material respects with information requested by Parent and Merger Sub concerning the requirements of Company that is required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between Parent, Merger Sub and their respective Representatives, on the one hand, and the SEC, on the other hand. Parent and Merger Sub shall use their respective reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC with respect to the Offer Documents. Prior to the filing of the Offer Documents (or any amendment or supplement thereto) or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect thereto, Parent and Merger Sub shall provide the Company a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC propose comments on such document or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsresponse.
(c) Parent shall contribute provide, or cause to be provided, to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (MWI Veterinary Supply, Inc.), Merger Agreement (Amerisourcebergen Corp)
The Offer. (a) Subject to the provisions conditions of this Agreement---------- Agreement including those set forth in Annex B hereto, as promptly as practicable but in no event later than the fifth business day from and including five Business Days after the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the OfferOffer within the meaning of the applicable Regulations of the SEC. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and or accept for payment, and or pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A Annex B (any of which may be waived by Merger Sub Purchaser in its sole discretion, and reasonable judgment provided that, without the consent of the Company, Merger Sub shall Purchaser may not -------- waive the Minimum Condition (as defined in Exhibit A)Tender Condition) and to the terms and conditions other provisions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th Business Day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(e)(6) under the Exchange Act). Merger Sub Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the 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 price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit AAnnex B in any manner adverse to the holders of shares of Company Common Stock, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived; provided, -------- however, that the expiration date shall not be later than the Termination Date ------- as a result of such extension, (ii) extend the Offer for a period of not more than 10 Business Days beyond the expiration date that would otherwise be permitted under clause (i) of this sentence, if on the date of such extension (x) less than 90% of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer and (y) Purchaser has permanently waived all of the conditions to the Offer set forth in Annex B (other than conditions that are not legally capable of being satisfied and conditions that have not been satisfied because of the willful or intentional action or inaction of the Company), and (iii) extend the Offer for any period required by any rule, regulationRegulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at If, on any scheduled expiration thereof due to date of the failure of one or more Offer, any of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, Annex B have not been satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such unsatisfied conditions will be satisfied (it are still capable of being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companysatisfied, the Company may request and Merger Sub shall make further extensions require Purchaser to extend the expiration date of the Offer in accordance with for a period of not more than 10 Business Days; provided, however, that Purchaser shall not be -------- ------- required to extend the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to later than the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateTermination Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of America.
(c) On the date of the commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, Offer ("Schedule 14D-1") which shall will contain an offer to purchase and a form of the -------------- related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub Purchaser, --------------- and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and each of Parent and Merger Sub Purchaser further agrees 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 to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable Federal federal securities lawsLaws. The Parent and Purchaser agree to give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their the filing of the Offer Documents with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree Purchaser agrees to provide the Company and its counsel in writing with any comments Parent, Merger Sub or their Purchaser and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsthereof.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated and subject to the provisions of this Agreementterms hereof, as promptly as practicable practicable, but in no event later than the fifth five (5) business day from and including the date of days after the public announcement of this Agreementthe execution hereof by the parties, Merger Sub shall, Acquisition shall (and Parent shall cause Merger Sub Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer"Exchange Act")), the Offer for any and all of the Shares, at the Offer Price. The obligation of Merger Sub to, Acquisition to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Merger Sub to, commence the Offer and Acquisition to accept for payment, payment and to pay for, for any shares of Common Stock tendered pursuant to the Offer Shares tendered) shall be subject only to (i) the condition that at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested Company Stock Options (as defined in Section 3.2(a)) and unvested Company Stock Options that vest prior to the Final Date (as defined in Section 7.1), but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex A. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, no change may be made that (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A, (v) amends the conditions set forth in Exhibit Annex A to broaden the scope of such conditions, (vi) amends any other term of which the Offer in a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 1.1(b), or (viii) amends or waives the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and Acquisition and may be waived by Merger Sub Parent and Acquisition, in its whole or in part at any time and from time to time, in their sole discretion, provided thatother than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent and 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 that may be asserted at any time and from time to time. 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 the date that is twenty (20) business days after the date the Offer is commenced; provided, however, that without the consent of the Company's Board of Directors (the "Company Board"), Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub Acquisition may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject from time to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; or (Aiii) in extend the event it Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date that would otherwise be entitled to terminate permitted under clause (i) or (ii) of this sentence if on such expiration date there shall not have been tendered at least 90% of the Offer at outstanding Shares. Parent and Acquisition agree that, if any scheduled expiration thereof due to the failure of one or more of the conditions to the Offer set forth on Annex A are not satisfied and none of the events set forth in the first sentence of the introductory paragraph or paragraphs (a) or through (gf) of Exhibit Annex A that would permit Acquisition not to be satisfied or waived, it shall give the Company notice thereof and, accept tendered Shares for payment has occurred and is continuing at the request time of any scheduled expiration date of the CompanyOffer, if then, provided, that such conditions are reasonably likely to be satisfied during the requested extension periodcapable of being satisfied, Acquisition shall extend the Offer until the earlier of (1) such from time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- time unless any such condition is not no longer reasonably capable of being satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the or any such event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offerhas occurred; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will shall Acquisition be tendered in the Offer. If, at any scheduled expiration date prior required to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days beyond January 31, 2000 (up to 20 calendar daysprovided that if on January 31, 2000 the condition set forth in clause (ii) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent first paragraph of Annex A hereto regarding the HSR Act is not satisfied and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements none of the Securities Exchange Act events set forth in paragraphs (a) through (f) of 1934Annex A that would permit Acquisition not to accept Shares tendered for payment has occurred and is continuing, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.then
Appears in 2 contracts
Sources: Merger Agreement (Intel Corp), Merger Agreement (DSP Communications Inc)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article VI hereof and so long as none of the provisions of this Agreementevents set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing, as promptly as practicable practicable, but in no event later than the fifth business day from and including after the date of the public announcement of this Agreement, Merger Parent and Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and at the Offer Price. The obligations of Sub to accept for payment, payment and to pay for, for any shares of 6 Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (Tender Offer Conditions, any of which may be waived by Merger Parent or Sub in its their sole discretion; provided, provided thathowever, without the consent of the Company, Merger that Sub shall not waive the Minimum Condition (as defined in Exhibit Annex A)) without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and to the terms Sub and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned be asserted by Parent the right to purchase all or any portion and Sub regardless of the Shares tendered pursuant circumstances giving rise to the Offerany such Tender Offer Conditions or, but no such assignment shall relieve except as expressly set forth herein, may be waived by Parent and Sub in whole or Merger Sub of its obligations hereunderin part. Merger Parent and Sub expressly reserves reserve the right to modify the terms of the Offer, except thatincluding without limitation to extend the Offer beyond any scheduled expiration date; provided; however, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit ATender Offer Conditions, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (viv) amend or modify make any term other change in the terms of the Offer in any manner which is materially adverse to any the holders of the Company's stockholdersCommon Stock. The initial expiration date shall be September 15, 1997. Notwithstanding Upon the foregoing, Merger Sub may, without the consent of the Company, but terms and subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend conditions of the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to Sub shall purchase all shares of Common Stock shall not be satisfied, until such time as such conditions which are satisfied validly tendered on or waived or (ii) extend prior to the expiration of the Offer for any period required by any ruleand not withdrawn.
(b) As soon as reasonably practicable on the date the Offer is commenced, regulationParent and Sub shall file, interpretation or position of and Parent shall cause Sub to file, with the Securities and Exchange Commission (the "SECCommission") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall contain (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents "Letter of Transmittal"), as well as all other information and exhibits included therein pursuant required by law (which Schedule 14D-1, Offer to which the Offer will be madePurchase, Letter of Transmittal and such other information and exhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents shall Schedule 14D-1 will comply as to form in all material respects with the requirements provisions of applicable federal securities laws and, on the Securities Exchange Act of 1934, as amended (date filed with the "Exchange Act"), Commission and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholdersshareholders, 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 are made, not misleading, except that no representation is made by Parent or Merger Sub with respect to any information supplied by the Company in writing for inclusion in the Offer DocumentsSchedule 14D-1. Each of Parent, Merger Parent and Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall be, or have become become, false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 Commission and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Common Stock, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders Each of the Company. Parent and Merger Sub agree agrees to provide the Company and its counsel with copies of any written comments Parent, Merger Parent and Sub or their counsel may receive from the SEC Commission or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.promptly
Appears in 2 contracts
Sources: Merger Agreement (Raymond Corp), Merger Agreement (Lift Acquisition Co Inc)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been validly terminated in accordance with its terms, as promptly as practicable but in no event later than the fifth business day from and including after the date of the public announcement of this Agreement, Merger Sub shall, and Parent AEP shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated by the SEC under the Exchange Act) the Offer. The obligation obligations of Merger Sub to, and of Parent AEP to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer shall be are subject only to (i) the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the non-waivable Minimum Tender Condition (as defined in Exhibit A)Annex I) and to (ii) the terms and other conditions set forth in Annex I (together with the Minimum Tender Condition, the “Offer Conditions”). The initial expiration date of this Agreementthe Offer shall be midnight, New York City time, on the 20th Business Day (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement of the Offer. Merger Sub may at any time transfer shall not, and AEP shall cause Merger Sub not to, terminate or assign to one or more corporations directly or indirectly wholly owned by Parent withdraw the right to purchase all or any portion Offer other than in connection with the termination of this Agreement in accordance with its terms. In the Shares tendered event that this Agreement is validly terminated pursuant to its terms, Merger Sub shall, and AEP shall cause Merger Sub to, promptly withdraw and terminate the Offer (and promptly after any termination or withdrawal of the Offer, but no such assignment shall relieve Parent or Merger Sub shall return, and shall cause any depository acting on behalf of its obligations hereunderMerger Sub to return, all tendered Shares to the registered holders thereof, in accordance with the terms of the Offer and applicable Law). Merger Sub expressly reserves the right to waive any condition to the Offer (other than the Minimum Tender Condition) or modify the terms of the Offer, except that, without the consent of the CompanySpecial Committee, Merger Sub shall not (iA) reduce the number of shares of Common Stock Shares subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant Offer Price, (C) add to the Offer (except pursuant Conditions or impose any other conditions to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (vD) amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement, in each case, in a manner adverse in a material respect to the holders of the Shares (other than AEP and its Affiliates), (E) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (viF) amend otherwise amend, modify or modify any term of supplement the Offer in any manner adverse in a material respect to any the holders of the Company's stockholders. The initial expiration date Shares (other than AEP and its Affiliates).
(b) Merger Sub shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, permitted to (without the consent of the Company, but subject to Company or of the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), Special Committee) and shall (and AEP shall cause Merger Sub to):
(i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; and
(Aii) in if, on the event it would otherwise be entitled to terminate initial expiration date or any subsequent date as of which the Offer at is scheduled to expire, any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition Condition is not satisfied by and has not been waived (to the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer extent waivable in accordance with the terms of this Section 1.1(aAgreement); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for on one or more occasions in consecutive increments of up to ten Business Days each (or such longer period as the Special Committee and AEP may agree), until such time as such Offer Conditions are satisfied; provided, however, that (1) Merger Sub shall not be requested by required to extend the Company Offer beyond the Outside Date or the termination of this Agreement in accordance with its terms and (2) if, at any date as of which the Offer is scheduled to expire, all of the Offer Conditions except for the Minimum Tender Condition are satisfied or have been waived (to the extent waivable in accordance with the terms of this Agreement), Merger Sub shall only be required to extend the Offer for one or more additional periods not to exceed an aggregate of ten business days from such scheduled expiration date. Subject to Business Days.
(c) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent AEP shall cause Merger Sub to, promptly after the expiration of the Offer, accept for payment and promptly (within the meaning of Rule 14e-1 under the Exchange Act) thereafter pay for for, all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after (the expiration “Acceptance Time”). AEP shall cause to be provided to Merger Sub all of the Offer; provided, however, funds necessary to purchase any Shares that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not Merger Sub becomes obligated to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in purchase pursuant to the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(bd) If, between the date of this Agreement and the Effective Time, the outstanding Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price and the Per Share Merger Consideration, as applicable, shall be appropriately adjusted.
(e) On the date of commencement of the Offer, Parent AEP and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and shall, to the ------------ rules and regulations promulgated thereunder and extent required by applicable U.S. federal securities Laws, mail the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light holders of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Shares promptly after filing the Schedule TO with the SEC. AEP and Merger Sub with respect shall be entitled to information supplied by include the Special Committee Recommendation and the Company in writing for inclusion Board Recommendation in the Offer Documents. Each of ParentAEP and Merger Sub shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents and each of AEP, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent AEP and Merger Sub further agrees to 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 to be disseminated to the Company's stockholdersholders of the Shares, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Company Company, the Special Committee and its their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto a reasonable time prior to their filing such documents with the SEC or dissemination of such documents to stockholders holders of the Shares, and AEP, Merger Sub and their counsel shall consider in good faith any comments thereto made by the Company, the Special Committee or their respective counsel. Parent AEP and Merger Sub agree to shall (i) provide the Company Company, the Special Committee and its their respective counsel with any written comments Parentor requests (and inform them of any oral comments or requests) for additional information AEP, Merger Sub or any of their counsel representatives may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
comments or requests, (cii) Parent shall contribute provide to the Company, the Special Committee and their respective counsel a reasonable opportunity to review and comment upon any written responses thereto a reasonable time prior to responding to such comments or requests, (iii) consider in good faith any comments thereto made by the Company, the Special Committee or their respective counsel, and (iv) consult (to the extent practicable) with the Company, the Special Committee and/or their respective counsel prior to making any material oral responses or engaging in any material discussions with the SEC. AEP and Merger Sub on a timely basis shall use reasonable best efforts to permit the funds necessary Company, the Special Committee and/or their respective counsel to purchase any shares of Common Stock that participate with AEP and Merger Sub becomes obligated to purchase pursuant to or their representatives in any material discussions or meetings with the Offer and to perform any of its other obligations pursuant to this AgreementSEC.
Appears in 2 contracts
Sources: Merger Agreement (Federal-Mogul Holdings Corp), Merger Agreement (Icahn Enterprises L.P.)
The Offer. (a) On the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Guarantor, Parent and Merger Sub filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that incorporated by reference the Offer to Purchase and form of the related letter of transmittal, form of summary advertisement and such other customary documents included therein (the Schedule TO, the Offer to Purchase and such other documents pursuant to which the Offer is being made, the “Offer Documents”).
(b) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including three Business Days after the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Offer. The obligation offer to purchase (as so amended and supplemented, the “Offer to Purchase”) and the other Offer Documents, in each case in accordance with the terms of Merger Sub tothis Agreement, (as so amended and of Parent supplemented, the “Amended Offer Documents”), including to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to reflect the conditions set forth in Exhibit A Annex I (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)“Offer Conditions”) and to file with the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent SEC the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Amended Offer Documents.
(c) Merger Sub expressly reserves the right to modify (i) increase the Offer Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of the Company) and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in each case subject to extending the OfferOffer as required by applicable Law; provided, except thathowever, that 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 Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (vB) change the form of consideration payable in the Offer Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than by increasing the cash offer price) or Offer Conditions, (viE) amend or modify any term of the Offer Conditions or any of the terms of the Offer in any a manner adverse to any the holders of Shares or that would, individually or in the Company's stockholders. The initial expiration date shall aggregate, reasonably be September 15expected to prevent, 1997. Notwithstanding materially delay or impair the foregoingability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby, (F) waive or change the Minimum Condition (provided, that Merger Sub may, without at its sole discretion prior to the consent expiration of the CompanyOffer, but subject waive or change the Minimum Condition to remove the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)proviso in the definition of such term requiring that the calculation of the total outstanding voting power of the Shares be made on a fully-diluted basis; provided further, that Merger Sub (i) extend provides written notification of such determination to the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or Company and (ii) provides any notification or modification to the Amended Offer Documents with respect thereto, to the extent required by applicable Law, in each case at least five Business Days prior to any scheduled Expiration Date) or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any Expiration Date, as extended pursuant to the terms of this Agreement), unless this Agreement is terminated in accordance with Article 8. Notwithstanding anything to the contrary in this Agreement, the Offer for Price shall be adjusted appropriately to reflect the effect of any period required by stock split, reverse stock split, stock dividend (including any ruledividend or distribution of securities convertible into Shares), regulationcash dividend, interpretation reorganization, recapitalization, reclassification, combination, exchange of shares or position other like change with respect to the Shares, occurring on or after the date of the Securities this Agreement and Exchange Commission (the "SEC") or the staff thereof applicable --- prior to the Offer or in order to obtain any material regulatory approval applicable Acceptance Time, and such adjustment to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due Price shall provide to the failure holders of one or more of Shares the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A same economic effect as contemplated by this Agreement prior to be satisfied or waivedsuch action; provided, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 sentence shall modify Parent's and Merger Sub's right be construed to terminate this Agreement in the event that permit the Company to take any action with respect to its securities that is in breach hereof or prohibited by the conditions specified in paragraphs terms of this Agreement.
(d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request Unless extended pursuant to and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and Agreement, the Offer shall initially be scheduled to expire at 11:59 p.m. (BNew York City time) on the date that is the later of (i) December 14, 2012 or (ii) the date that is five (5) Business Days following the date of filing with the SEC of the Amended Offer Documents (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then prior to the then scheduled Expiration Date Merger Sub shall extend the Offer for one or more periods of not more than five (5) Business Days each (or such other number of Business Days as the parties may agree) and ending no later than the Outside Date in order to permit the satisfaction of such conditions (subject to the right of Merger Sub to waive any Offer Condition, other than the Minimum Condition (except as provided in Section 1.1(c)), in accordance with this Agreement); provided, that nothing in this Section 1.1(e)(i) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 8 hereof; and
(ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange LLC (the “NYSE”) or its staff, in each case applicable to the Offer, provided that Merger Sub would otherwise shall not be entitled required to terminate extend the Offer at any scheduled beyond the Outside Date.
(f) Merger Sub may (and the Amended Offer Documents shall reserve the right of Merger Sub to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) of not fewer than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration date thereof due solely to the failure of the Minimum Condition to be satisfiedOffer; provided, it shall, that Merger Sub shall offer a Subsequent Offering Period of three (3) Business Days at the request of the CompanyCompany if, extend immediately following the Offer for such period as may expiration of the Offer, the Short Form Threshold has not been reached and cannot be requested by reached through the Company not to exceed ten business days from such scheduled expiration dateimmediate exercise of the Top-Up Option hereunder in accordance with its terms. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 8. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares (i) promptly (and in any event within twenty-four (24) hours of Common Stock validly tendered such termination), irrevocably and unconditionally terminate the Offer, (ii) not withdrawn acquire any Shares pursuant to the Offer that and (iii) cause any depository acting on behalf of Merger Sub becomes obligated to purchase pursuant promptly return, in accordance with applicable Law, all tendered Shares to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(bh) On The Company shall cooperate fully in the date of commencement preparation of the Offer, Parent and Merger Sub shall file with Amended Offer Documents to reflect the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter terms of transmittal and summary advertisement (such Schedule 14D-1 this Agreement and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Amended Offer Documents and all amendments and supplements thereto prior to their filing before they are filed with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree that they shall cause the Amended Offer Documents and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC to provide comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Without limiting the generality of the foregoing, the Company will furnish to the Parent and Merger Sub the information relating to it required by the Exchange Act to be set forth in the Amended Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the Shares. Each of Parent and Merger Sub shall use its counsel any reasonable best efforts to resolve all SEC comments with respect to the Amended Offer Documents as promptly as reasonably practicable after receipt thereof. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Amended Offer Documents which shall have become false or their counsel may receive misleading. Each of Parent and Merger Sub shall as soon as reasonably practicable notify the Company of the receipt of any comments from the SEC or its staff with respect to the Amended Offer Documents promptly after and any request by the receipt SEC for any amendment to the Amended Offer Documents or for additional information and shall provide the Company with copies of all such comments.
comments and correspondence. Prior to filing or mailing the Amended Offer Documents (cor any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, each of Parent shall contribute to and Merger Sub on shall provide the Company a timely basis the funds necessary reasonable opportunity to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer review and to perform any propose comments on such document or response and shall, in good faith, consider and incorporate the reasonable comments of its other obligations pursuant to this Agreementthe Company.
Appears in 2 contracts
Sources: Merger Agreement (Reckitt Benckiser Group PLC), Merger Agreement (Schiff Nutrition International, Inc.)
The Offer. (a) Subject to the provisions conditions of this ---------- Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of 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 tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not may not, except as provided below, waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th business day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(e)(6) of the SEC). Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not not, except as provided in the next sentence, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (Aiii) in extend the event it Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be entitled to terminate permitted under clause (i) or (ii) of this sentence (a "Parent ------ Extension Period"); provided that if Sub shall extend the Offer at pursuant to ---------------- this clause (iii), it shall waive during any scheduled expiration thereof due to Parent Extension Period all conditions of the failure of one or more of Offer set forth in Exhibit A other than the Minimum Tender Condition and the conditions set forth in the first sentence of the introductory paragraph or paragraphs (ad) or and (g) in Exhibit A; and (iv) if the option granted pursuant to Section 4 of the Company Stockholder Agreement is then exercisable, reduce the number of shares of Company Common Stock necessary to satisfy the Minimum Tender Condition (as defined in Exhibit A) to that number of shares which, together with the shares of Company Common Stock that may be purchased by Parent upon exercise of the option granted pursuant to Section 4 of the Company Stockholder Agreement, would represent at least a majority of the Fully Diluted Shares (as defined in Exhibit A). If any of the conditions of the Offer set forth in Exhibit A to be (other than the Minimum Tender Condition) is not satisfied or waived, it shall give the Company notice thereof and, at the request on any scheduled expiration date of the CompanyOffer, then, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which Sub shall not extend the Offer one or more times (the period of each such extension to be later than (xdetermined by Sub) December 31, 1997 or (y) for up to 30 days in the date on which the Company reasonably believes aggregate for all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementextensions, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- at the time of such extension any such condition is not reasonably capable of being satisfied by the date so chosen by the Company, and the Company may request and Merger Sub shall make further extensions of the Offer has not received a Company Takeover Proposal (as defined in accordance with the terms of this Section 1.1(a5.02(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date). Subject to 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 of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Union Texas Petroleum Holdings Inc), Agreement and Plan of Merger (Atlantic Richfield Co /De)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the provisions events set forth in paragraphs (a)-(g) of this AgreementAnnex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the fifth business day from and including the date of the initial public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, Purchaser's intention to commence the Offer. The Purchaser shall not, without the consent of the Special Committee, accept for payment any Shares tendered pursuant to the Offer unless at least a majority of the then issued and outstanding Shares, other than the Parent Shares, shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "First Minimum Condition"). In addition to the First Minimum Condition, the obligation of Merger Sub to, and of Parent Purchaser to cause Merger Sub to, commence the Offer and accept for payment, payment and pay for, any shares of Common Stock for Shares tendered pursuant to the Offer shall be subject only sub- ject (i) to the condition (the "Second Minimum Condition") that there shall have been validly tendered and not withdrawn prior to the expiration of the Offer at least the number of Shares that when added to the Parent Shares shall constitute not less than 90% of the then issued and outstanding Shares on a Fully Diluted Basis (as defined below) and (ii) to the satisfaction of the other conditions set forth in Exhibit Annex A hereto. Purchaser expressly reserves the right to waive any such condition (any of which may be waived by Merger Sub in its sole discretion, provided that, ex- cept the First Minimum Condition) without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to make any other changes in the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms condi- tions of the Offer; provided, except thathowever, without that no change may be made which decreases the consent of the CompanyPer Share Amount, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of which imposes condi- tions to the Offer in any manner adverse addition to any of the Company's stockholdersthose set forth in Annex A hereto. The initial expiration date of the Offer shall be September 15mid- night on the 20th business day following commencement of the Offer. The foregoing notwithstanding, 1997. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to extend the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), Offer (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer, (ii) if at the initial expira- tion date any of the conditions to the Offer set forth in para- graphs (a) - (g) of Annex A have not been satisfied or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: waived, until such time as all of such conditions shall have been sat- isfied or waived, and (Aiii) in the event it would otherwise be entitled all of the conditions to terminate the Offer at any scheduled expiration thereof due to set forth in Annex A shall have been satisfied or waived, other than the failure First Minimum Condition or the Second Minimum Condition, for a period or periods aggregating not more than 20 business days after the later of one or more (A) the initial expi- ration date of the Offer and (B) the date on which all of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or - (g) of Exhibit Annex A shall have been satisfied or waived. If all of the conditions to be the Offer set forth in Annex A have been satisfied or waived, it shall give other than the Company notice thereof andSecond Minimum Condition, at then on the request later to occur of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or the initial expiration date of the Offer and (y) the latest expiration date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer permitted by the preceding sentence, Purchaser shall waive the Second Minimum Condition. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in accordance with cash, upon the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely sub- ject to the failure conditions of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to the terms and conditions of the Offer and this Agreement(including, Merger Sub shallwithout limitation, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 First Minimum Condition and the documents and exhibits included therein pursuant to which the Offer will be madeSecond Minimum Condition), together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents Pur- chaser shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934pay, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly practicable after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.expiration
Appears in 2 contracts
Sources: Merger Agreement (Monsanto Co), Merger Agreement (Calgene Inc /De/)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but practicable, and in any event no event later more than the fifth business day from and including seven Business Days, after the date of the public announcement of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. ; provided that Parent and Merger Sub Subsidiary may at waive any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant conditions to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall Minimum Condition, which may not be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, waived without the prior written consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or may make changes in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreementexcept that, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to without the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request written consent of the Company, no change may be made to the form of consideration to be paid, no decrease in the Offer Price or the number of Shares sought in the Offer may be made, no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company ifOffer, except in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997accordance with Section 2.01(c).
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect TO (as amended and supplemented from time to time, the Offer“Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the Securities Exchange Act related letter of 1934transmittal and other appropriate documents (which documents, as amended (or supplemented from time to time, are referred to herein collectively as the "Exchange Act"“Offer Documents”), . The Parent and the ------------ rules and regulations promulgated thereunder and Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities Laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the date first published, sent or given Offer Documents prior to their filing with the SEC. Parent and Merger Subsidiary agree to provide the Company's stockholders, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub oral) with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsDocuments promptly after receipt thereof and any responses thereto. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees 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 to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsLaw.
(c) The initial scheduled expiration date of the Offer shall be 20 Business Days after the date of its commencement. Notwithstanding the foregoing, Parent and Merger Subsidiary shall have the right to extend the Offer (i) from time to time if, at any scheduled or extended expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A hereto is not satisfied or waived as a result of the occurrence of any of the events described in subparagraph (b) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the written request of the Company if such conditions or condition could reasonably be expected to be satisfied on or before July 31, 2004, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law, (iii) on one or more occasions (all such occasions aggregating not more than 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents more than 50% but less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent’s decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (c) and (e) (excluding any wilful or intentional breach of any material obligation of the Company) on Annex A and of its right to terminate the Agreement under Sections 8.01(b), (d) (unless there has been a wilful or intentional breach of any material obligation by the Company), (i) or (j), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any extended expiration date of the Offer, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the “Subsequent Period”) pursuant to Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall contribute cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer.
(e) The Offer and to perform any Price may be increased by the Parent without the consent of its other obligations pursuant to this Agreementthe Company, in which case the Offer shall be extended, without the consent of the Company, as required by applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including five Business Days after the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the OfferOffer within the meaning of the applicable Regulations of the SEC. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and or accept for payment, and or pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A Annex B (any of which may be waived by Merger Sub Purchaser in its sole discretion, provided that, without the consent of the Company, Merger Sub shall Purchaser may not waive the Minimum Tender Condition or the condition set forth in paragraph (as defined in Exhibit A)b)(viii) of Annex B) and to the terms and conditions other provisions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th Business Day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(c)(6) under the Exchange Act). Merger Sub Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the 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 price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit AAnnex B in any manner materially adverse to the holders of shares of Company Common Stock, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for a period of not more than 10 Business Days beyond the expiration date that would otherwise be permitted under clause (i) of this sentence, if on the date of such extension less than 90% of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer, (iii) extend the Offer for any period required by any rule, regulationRegulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2iv) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason for a period as may of not more than 10 Business Days beyond the latest expiration date that would otherwise be requested by the Company not to exceed ten business days from such scheduled expiration datepermitted under clause (i), (ii) or (iii) of this sentence. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of America.
(c) On the date of the commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, Offer ("Schedule 14D-1") which shall will contain an offer to purchase and a form of the related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934Parent, as amended (the "Exchange Act")Purchaser, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and each of Parent and Merger Sub AGREEMENT AND PLAN OF MERGER Purchaser further agrees 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 to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable Federal federal securities lawsLaws. The Parent and Purchaser agree to give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their the filing of the Offer Documents with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree Purchaser agrees to provide the Company and its counsel in writing with any comments Parent, Merger Sub or their Purchaser and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsthereof.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Tracor Inc /De), Merger Agreement (Gec Acquisition Corp)
The Offer. (a) Subject to Provided that: (x) this Agreement shall not have been terminated in accordance with Article V and (y) the provisions Company shall have complied with its obligations under Section 1.3, as promptly as reasonably practicable, and in any event within 10 days of the date of this Agreement, Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as promptly as practicable but in no event later than the fifth business day from and amended (including the date of rules and regulations promulgated thereunder, the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence “Exchange Act”)) the Offer. The obligation of Merger Sub to, and obligations of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer , including (i) the satisfaction of the Minimum Condition (as defined in Exhibit A hereto) and (ii) the satisfaction or assign to one or more corporations directly or indirectly wholly owned waiver by Parent the right to purchase all or any portion of each of the Shares tendered pursuant to other conditions set forth in Exhibit A hereto (together with the OfferMinimum Condition, but no such assignment shall relieve the “Offer Conditions”). Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to (A) increase the Offer Price, (B) waive any Offer Condition (other than the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the number of Shares issued and outstanding, or the Antitrust Condition) or (C) modify any of the other terms or conditions of the Offer not inconsistent with the terms of the Offerthis Agreement, except that, without the consent of the Company, Merger Sub Parent shall not (i1) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v2) change the form of consideration payable in the Offer (other than by increasing adding cash consideration), (3) reduce the cash offer price) number of Shares sought in the Offer or (vi4) add to the Offer Conditions, (5) amend or modify any term of the Offer Conditions in any a manner adverse 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 to consummate the Offer, or (6) change or waive the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the Company's stockholdersnumber of Shares issued and outstanding, or the Antitrust Condition, (7) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(b) of this Agreement or (8) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. For the avoidance of doubt, the Company will procure that no Share held in the treasury of the Company or any of its Subsidiaries immediately prior to the Acceptance Time (collectively, “Excluded Shares”) will be tendered pursuant to the Offer.
(b) The initial Offer shall expire at one minute after 11:59 p.m. Eastern 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) after the commencement of the Offer, unless otherwise agreed to in writing by Parent and the Company (such date or such subsequent date to which the expiration date shall be September 15of the Offer is extended in accordance with the terms of this Agreement, 1997the “Expiration Date”). Notwithstanding anything to the foregoingcontrary contained in this Agreement, Merger Sub but subject to the parties’ respective termination rights under Section 5.1: (i) if, as of the then-scheduled Expiration Date, any Offer Condition has not been satisfied or waived, Parent may, in its discretion (and without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(iiCompany or any other Person), (i) extend the OfferOffer on one or more occasions, if at the scheduled expiration date for an additional period of the up to 10 Business Days per extension, to permit such Offer any of the conditions Condition to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or ; (ii) Parent shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval rules of the Nasdaq Global Market (“Nasdaq”) applicable to the Offer. Merger Sub agrees that: ; and (Aiii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof andif, at the request then-scheduled expiration time of the CompanyOffer, if such conditions are reasonably likely the Company brings or shall have brought any action in accordance with Section 6.10 to enforce specifically the performance of the terms and provisions of this Agreement by Parent, the Expiration Date shall be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than extended (x) December 31, 1997 for the period during which such action is pending or (y) by such other time period established by the date on which court presiding over such action, as the Company reasonably believes all such conditions will case may be; provided, however, that in no event shall Parent be satisfied required to extend the Offer beyond the earliest to occur of (it being understood that x) the Company shall not be entitled to make such request if it is then in breach valid termination of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companycompliance with Article V, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (By) in the event that Merger Sub would otherwise be entitled to terminate first day immediately following October 31, 2023 (the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. “Outside Date”).
(c) Subject to the terms and conditions of this Agreement, including the satisfaction or waiver of all of the Offer Conditions, Parent will irrevocably accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Date in accordance with Section 1.6(a), provided, that with respect to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Parent shall be under no obligation to make any payment for such Shares unless and until such Shares are delivered in settlement or satisfaction of such guarantee. Without limiting the generality of the foregoing, Parent shall provide on a timely basis the funds that are necessary to pay for any and all Shares that Parent becomes obligated to purchase pursuant to the Offer and this Agreement. For the avoidance of doubt, Merger Sub shall, and Parent shall cause Merger Sub to, not accept for payment or pay for all shares any Shares if, as a result, Parent would acquire less than the number of Common Stock Shares necessary to satisfy the Minimum Condition. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated shall be paid, without interest, net to purchase the holder thereof in cash, subject to any withholding Taxes payable in respect thereof pursuant to applicable Law and Section 1.7. Subject to the Offer immediately Company Shareholder Approval, the Company shall register Parent, or if Shares are held by a nominee, such nominee in the share register of the Company as shareholder with voting rights with respect to any Shares irrevocably accepted for payment effective as soon as reasonably practicable after the expiration Acceptance Time; provided that Parent shall have paid for such Shares concurrently with the transfer of such Shares.
(d) Notwithstanding anything in this Agreement to the contrary, if, at any time occurring on or after the date hereof and prior to the Acceptance Time, any change in the outstanding equity interests of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that Company shall occur as a result of any reorganization, reclassification, recapitalization, stock split (including a reverse stock split), subdivision or combination, exchange or readjustment of shares, or any stock dividend or stock distribution (including any dividend or other distribution of securities convertible into Shares) with a record date during such extension 90% or more of period, the Shares Offer Price will be tendered in equitably adjusted to reflect such change and provide the Offer. If, at any scheduled expiration date holders of each Share the same economic effect as contemplated by this Agreement prior to October 1such event; provided, 1997, there that nothing in this Section 1.1(d) shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up be construed to 20 calendar days) as permit the Company may request. No to take any such request shall be made by action without the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each consent of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent if required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsunder Section 4.2.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and subject to the other provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including five (5) Business Days after the date of the public announcement by Purchaser and the Company of this Agreement, Merger Acquisition Sub shall, and Parent Purchaser shall cause Merger Acquisition Sub to, commence the Offer. The obligation of Merger Acquisition Sub to, and of Parent Purchaser to cause Merger Acquisition Sub to, commence the Offer and accept for payment, and pay for, any shares Shares of Company Common Stock properly tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex ----- A attached hereto (the "Offer Conditions"), any of which may be waived waived, in whole - or in part, by Merger Sub Acquisition Sub, in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Acquisition Sub expressly reserves the right to modify the terms of the OfferOffer in a manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (i) waive or otherwise modify the Minimum Condition so as to reduce the minimum number of shares Shares that Acquisition Sub will accept in the Offer to an amount constituting less than fifty-one percent (51%) of Common Stock subject the aggregate outstanding Shares (assuming the exercise of all options to purchase, and the conversion or exchange of all securities convertible or exchangeable into, Shares outstanding as of the consummation of the Offer), (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Per Share Amount, (iii) modify or add impose any conditions to the conditions set forth Offer in Exhibit Aaddition to the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend accept for payment or modify pay for any term of Shares pursuant to the Offer in any manner adverse prior to any of the Company's stockholders. The initial expiration date shall be September 15January 4, 19972000. Notwithstanding the foregoing, Merger Acquisition Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer if, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or but, in any event, Acquisition Sub shall not, without the prior written consent of the Company, extend the Offer beyond the Cut-Off Date (as defined in Section 8.1(b) hereof), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or but, in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedevent, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Acquisition Sub shall make further extensions of not, without the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request prior written consent of the Company, extend the Offer beyond the Cut-Off Date, or (iii) extend the Offer for such a period as may be requested by the Company not of up to exceed ten business days from such five (5) Business Days if, on any scheduled expiration date. Subject to the terms and conditions of date on which the Offer and this AgreementConditions shall have been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares the number of Common Stock Shares which have been validly tendered and not withdrawn pursuant represent more than 50% of the aggregate outstanding Shares (assuming the exercise of all options to purchase, and the Offer that Merger Sub becomes obligated to purchase pursuant to conversion or exchange of all securities convertible or exchangeable into Shares which are outstanding as of the Offer immediately after the expiration consummation of the Offer; provided), however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer but less than 90% of the then issued and outstanding Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bolle Inc), Merger Agreement (Shade Acquisition Inc)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 9.01 and none of the provisions of this Agreementevents set forth in Exhibit A shall have occurred and be continuing, as promptly as practicable but in no event later than the fifth business day from and including ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the SEC. The initial expiration date of the Offer shall be the twentieth (20th) Business Day following commencement of the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Offer Securities tendered pursuant to the Offer shall be subject only to the satisfaction of each of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive except that the Minimum Tender Condition (as defined in Exhibit A)may not be waived) and to the terms and other conditions of in this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the CompanyCompany (unless the Company takes any action permitted to be taken pursuant to Section 6.02(b)), Merger Sub shall not (i) reduce the number of shares of Common Stock Offer Securities subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to Offer Price, the Series D Offer (except pursuant to Section 3.4)Price or the Warrant Offer Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, Offer or (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger (i) Sub shall extend the Offer for one ten (10) Business Day period if the Minimum Tender Condition is not satisfied at the expiration of the initial twenty (20) Business Day Offer period and (ii) thereafter, Sub may, without the consent of the CompanyCompany and in its sole discretion, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer for successive extension periods (up until the Outside Date) not exceeding twenty (20) Business Days in the case of any single extension period: (A) if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Offer Securities are not be satisfied, until such time as such conditions are satisfied or waived or waived; and (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq National Market applicable to the Offer. Merger In addition, Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, may extend the Offer until the earlier after acceptance for payment of (1) such Offer Securities for a further period of time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration datetwenty (20) Business Days by means of a subsequent offering period under Rule 14d-11 under the Exchange Act. Subject to 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 of Common Stock Offer Securities validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent . Sub may, in its sole discretionat any time, extend transfer or assign to one or more Subsidiary of Parent the expiration date right to purchase all or any portion of the Offer for a period not Securities tendered pursuant to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at but any scheduled expiration date prior to October 1, 1997, there such transfer or assignment shall have been tendered, and not withdrawn, fewer than 90% relieve Sub or Parent of the Shares, then Merger Sub shall, at the request of the Company, extend its respective obligations under the Offer or prejudice the rights of tendering securityholders to receive payment for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Offer Securities validly tendered and accepted for payment.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"" and to cause such Offer Documents to be disseminated to holders of Offer Securities in accordance with applicable Federal Securities laws). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of Exchange Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsother Applicable Law. Each of Parent, Merger Sub and the Company agrees to use all reasonable efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer, and to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Offer Securities, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto (including any amendment thereto) prior to their the filing thereof with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (I Stat Corporation /De/), Merger Agreement (I Stat Corporation /De/)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article VIII hereof, as promptly as practicable after the date hereof (but in no event later than the fifth business day from and including seventh (7th) Business Day after the date of the public announcement of this Agreementhereof), Merger Sub shallshall commence (within the meaning of Rule 14d-2 under the Exchange Act), and Parent shall cause Merger Sub toto commence, commence the Offer to purchase all of the issued and outstanding Shares at a price per Share in cash equal to $31.00 net to the seller, without interest and less any taxes required to be withheld as described in Section 3.5 (such amount to be paid for each Share, as it may be amended from time to time in accordance with the terms hereof, the “Offer Price”). The Company agrees that no Shares owned by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. .
(b) The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer on or prior to the Expiration Date (the “Tendered Shares”) shall be subject only to (i) the satisfaction of the Minimum Condition and (ii) the satisfaction or waiver by Merger Sub of the other conditions set forth in Exhibit A Annex I hereto (any of which may be waived by Merger Sub in its sole discretionsuch conditions, provided that, without the consent of the Company, Merger Sub shall not waive together with the Minimum Condition (as defined in Exhibit A)Condition, the “Offer Conditions”) and to the terms and conditions hereof. The Offer Conditions are for the sole benefit of this AgreementParent and Merger Sub. Parent and Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent expressly reserve the right to purchase all increase the Offer Price or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent waive or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms or conditions of the Offer, except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) reduce the number of Shares to be purchased by Merger Sub in the Offer, (iv) waive or amend the Minimum Condition, (v) add to the Offer (Conditions or impose any other than by increasing conditions to the cash offer price) or Offer, (vi) amend extend the expiration of the Offer except as required or permitted in Section 1.1 of this Agreement, (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer set forth in any this Agreement, in each case in a manner adverse to any the holders of Shares or (viii) abandon or terminate the Company's stockholders. The Offer, except as expressly provided in this Agreement.
(c) Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date for the Offer shall be September 15midnight, 1997New York City time, the twentieth (20th) Business Day from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act (such initial expiration date as it may be extended in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Companyand Parent shall cause it to, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval NASDAQ Stock Market (“NASDAQ”) that is applicable to the Offer. Merger Sub agrees that: may without the consent of the Company (in each case unless this Agreement has been terminated pursuant to Article VIII), (i) extend the Offer for one or more consecutive increments of not more than ten (10) Business Days each, if at the then-scheduled Expiration Date any Offer Condition has not been satisfied or waived (the length of such period to be determined by Parent and Merger Sub) and/or (ii) make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. If at any then-scheduled Expiration Date any Offer Condition has not been satisfied or waived, Merger Sub shall, and Parent shall cause it to (in each case unless this Agreement has been terminated pursuant to Article VIII), extend the Offer at the request of the Company for one or more consecutive increments of not more than ten (10) Business Days each (the length of such period to be determined by Parent and Merger Sub) until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) the Outside Date. In addition, Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of not less than five (5) Business Days; provided that Merger Sub shall not be required to make available such a “subsequent offering period” in the event it would that, prior to the commencement of such “subsequent offering period,” Parent and Merger Sub, directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable); provided further that if Parent and Merger Sub, do not directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable) at the end of the initial “subsequent offering period,” Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, extend the “subsequent offering period” for not less than an additional five (5) Business Days. Nothing in this Section 1.1(c) shall (i) impose any obligation on Merger Sub to extend the Offer beyond the Outside Date, or (ii) be deemed to impair, limit or otherwise be entitled restrict in any manner the right of Parent to terminate this Agreement pursuant to Article VIII.
(d) The Offer shall be made by means of an offer to purchase (the “Offer at any scheduled expiration thereof due to Purchase”) containing the failure of one or more of terms set forth in this Agreement and the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateI hereto. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered on the terms set forth in this Agreement and not withdrawn pursuant subject to the Offer that Merger Sub becomes obligated to purchase pursuant to prior satisfaction or waiver of the conditions of the Offer immediately after the expiration of the Offer; (provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend Minimum Condition may not be waived without the expiration date written consent of the Offer Company), accept for payment and pay for all Tendered Shares as soon as practicable after the Expiration Date. If Merger Sub makes available a period not to exceed ten business days and “subsequent offering period” in no event ending after December 31accordance with Section 1.1(c) hereof, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at and Parent shall cause Merger Sub to accept for payment and pay for all Shares that are validly tendered during such “subsequent offering period” promptly (within the request meaning of Rule 14d-11 under the Company, extend the Offer for Exchange Act) after any Shares are validly tendered during such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997“subsequent offering period.”
(be) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer the Offer to purchase Purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto and including the exhibits thereto, the "“Offer Documents"”), and cause the Offer Documents to be disseminated to the Stockholders as and to the extent required by United States federal securities Laws and the rules and regulations of the SEC promulgated thereunder (the “Federal Securities Laws”). The Parent and Merger Sub shall cause the Offer --------------- Documents shall to comply as to form in all material respects with the requirements Federal Securities Laws. Parent and Merger Sub shall deliver copies of the Securities Exchange Act proposed forms of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent (including any amendments or given supplements thereto) to the Company's stockholders, shall not contain any untrue statement of Company within a material fact reasonable time prior to the dissemination or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied filing thereof for review and comment by the Company and its counsel, and shall consider in writing for inclusion in good faith any comments of the Offer DocumentsCompany. Each of Parent, Merger Sub and the Company agrees shall respond promptly to any comments of the SEC or its staff with respect to the Offer or the Offer Documents and promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of respect or as otherwise required by the Federal Securities Laws. Parent and Merger Sub further agrees to take all steps necessary to shall amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable the Federal securities laws. The Company Securities Laws and its counsel shall be given a reasonable opportunity subject to review the Offer Documents terms and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders conditions of the Companythis Agreement. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or oral responses to such comments. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation as it may be amended or modified, and until but not after it is withdrawn, in each case as permitted by this Agreement.
(cf) Parent shall contribute cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement with respect to consummation of the Offer and to perform any the Merger and payment or issuance of its other obligations pursuant to consideration contemplated by this AgreementAgreement in respect thereof.
Appears in 2 contracts
Sources: Merger Agreement (Amylin Pharmaceuticals Inc), Merger Agreement (Bristol Myers Squibb Co)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article IX, as promptly as practicable but in no event later than the fifth business day from and including after the date of the public announcement of this Agreementhereof, Merger Sub shall, shall (and Parent shall cause Merger Sub to) commence, commence within the meaning of Rule 14d-2 under the Exchange Act, a tender offer (the “Offer. The obligation ”) to purchase all of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any outstanding shares of Company Common Stock tendered at a price per share equal to $9.40 net to seller in cash, without interest (such amount or any higher amount per share of Company Common Stock paid pursuant to the Offer shall be in accordance with this Agreement, the “Offer Price”), subject only to any deduction or withholding of Taxes in accordance with Section 3.01(h), on the terms and subject to the conditions set forth in Exhibit A this Agreement. The consummation of the Offer, and the obligation of Merger Sub to accept for payment and pay for any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer, shall be subject only to: (i) there being validly tendered and “received” (as defined by Section 251(h)(6) of the DGCL) in the Offer and not properly withdrawn prior to the Expiration Time that number of shares of Company Common Stock (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) that, together with the number of shares of Company Common Stock then owned by Parent, Merger Sub or any of which may be waived their respective “affiliates” (as defined by Section 251(h)(6) of the DGCL), represents fifty-one percent (51%) of the shares of Company Common Stock then outstanding (the “Minimum Condition”), (ii) this Agreement not having been validly terminated in accordance with its terms (the “Termination Condition”) and (iii) the satisfaction, or waiver (to the extent such waiver is permitted by Applicable Law and this Agreement) by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit B (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).
(b) Subject to the satisfaction, or waiver by Merger Sub in its sole discretionaccordance with the terms of this Agreement, provided that, without the consent of the CompanyOffer Conditions, Merger Sub shall not waive (and Parent shall cause Merger Sub to) (i) at or as promptly as practicable following the Minimum Condition Expiration Time (as defined in Exhibit Aany event, no later than the second Business Day immediately following the date on which the Expiration Time occurs), accept for payment (the time of acceptance for payment, the “Acceptance Time”) and (ii) at or as promptly as practicable following the Expiration Time (in any event, no later than the third Business Day immediately following the date on which the Expiration Time occurs), pay the aggregate Offer Price (by delivery of funds to the depositary for the Offer) for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The Parties agree that the Offer and Merger Sub’s obligation to accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer in accordance with the foregoing are not, and shall not be, subject to any condition other than the Offer Conditions.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent , including the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderOffer Conditions. Merger Sub expressly reserves the right (in its sole discretion) to modify (i) increase the Offer Price, (ii) waive any Offer Conditions (other than the Minimum Condition, the Termination Condition and the Antitrust Condition) and (iii) make any other changes to the terms and conditions of the Offer 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 Company, Merger Sub shall not (and Parent shall cause Merger Sub not to) (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) change, modify or waive the Termination Condition, the Minimum Condition or the Antitrust Condition, (iv) add to the conditions set forth in Exhibit AB or modify or change any Offer Condition in a manner adverse in any material respect to any holders of Company Common Stock of the Company, (ivv) except as otherwise provided in the remainder of this Section 1.12.01, extend or otherwise change the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend otherwise amend, modify or modify supplement any term of the terms of the Offer in any a manner adverse in any material respect to any holders of Company Common Stock of the Company.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is twenty (20) business days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such time, the “Initial Expiration Time”), or if the Initial Expiration Time has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Time, or such later time and date to which the Initial Expiration Time has been extended in accordance with this Agreement, the “Expiration Time”).
(e) Parent and Merger Sub agree that, if as of any scheduled Expiration Time, any of the Offer Conditions is not satisfied (other than the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at the Expiration Time) or, in Merger Sub’s sole discretion, waived (if such Offer Condition is permitted to be waived pursuant to this Agreement and Applicable Law), then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for successive periods of time of up to five (5) business days each (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (or such longer period as the Parties may agree in writing) in order to permit the satisfaction of such conditions; provided that, if at any scheduled Expiration Time, the only unsatisfied Offer Condition (other than the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at the Expiration Time) is the Minimum Condition, (i) Merger Sub shall not be required to extend the Offer for more than a total of twenty (20) business days (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) and (ii) if prior to any scheduled Expiration Time on or after such twentieth (20th) business day referred to in the foregoing clause (i) of this proviso, Merger Sub has received from the Company a written notice of the Company's stockholders. The initial expiration date ’s election that Merger Sub not so extend the Offer, Merger Sub shall be September 15, 1997not (and Parent shall not permit Merger Sub to) extend the Offer beyond such scheduled Expiration Time. Notwithstanding anything to the contrary in the foregoing, (A) Merger Sub mayshall not be required to, and without the Company’s prior written consent shall not (and Parent shall not permit Merger Sub to), extend the Offer to a date later than the Termination Date, (B) Merger Sub shall not (and Parent shall not permit Merger Sub to) extend the Offer if all Offer Conditions have been satisfied and (C) Merger Sub shall extend the Offer for any period or periods required by Applicable Law, including applicable rules, regulations, interpretations or positions of the SEC or its staff, or the New York Stock Exchange. In addition, notwithstanding anything in this Agreement to the contrary, (1) Merger Sub may from time to time, in its sole discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer on up to three (3) separate occasions for ten (10) business days each (for this purpose, calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act), if, as of any period required by any rulescheduled Expiration Time, regulation(x) Parent and Merger Sub shall have waived the Funding Condition, interpretation or position (y) all of the Securities other Offer Conditions (other than the Minimum Condition and Exchange Commission the condition set forth in clause (b)(v) of Exhibit B, which by its nature is to be satisfied at the "SEC"Expiration Time) or the staff thereof applicable --- have been satisfied or, in Merger Sub’s sole discretion, waived (to the extent such Offer or in order Condition is permitted to obtain any material regulatory approval applicable be waived pursuant to this Agreement and Applicable Law) at such time and (z) the Offer. proceeds of the Financing have not actually been received by Merger Sub agrees that: or TopCo Parent (Aeither directly or through any of TopCo Parent’s Subsidiaries) and the Financing Sources have not unconditionally and irrevocably confirmed in writing to TopCo Parent, Parent or Merger Sub that all of the event it would otherwise Financing will be entitled to terminate available at the Offer at any scheduled expiration thereof due to Closing on the failure of one or more of the terms and conditions set forth in the first sentence of Financing Letters, and (2) if the introductory paragraph Funding Condition has been satisfied or paragraphs (a) or (g) of Exhibit A waived by Parent and Merger Sub, then Merger Sub shall, if required by the Exchange Act, cause the Offer to be satisfied or waivedextended for a period of five (5) business days (for this purpose, it calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act).
(f) Merger Sub shall give not (and Parent shall cause Merger Sub not to) terminate the Company notice thereof and, at Offer prior to any scheduled Expiration Time without the request prior written consent of the Company, except if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition validly terminated pursuant to Article IX. If this Agreement is not satisfied by the date so chosen by the Companyvalidly terminated pursuant to Article IX, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to) promptly (and in any event within one (1) business day) irrevocably and unconditionally terminate the Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer is validly terminated prior to the Acceptance Time, pay for Merger Sub shall (and Parent shall cause Merger Sub to) promptly return, and shall cause any depositary acting on behalf of Merger Sub to return, in accordance with Applicable Law, all tendered shares of Company Common Stock to the registered holders thereof.
(g) Parent shall cause to be provided to Merger Sub, on a timely basis, all of the funds necessary to purchase all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement.
(h) As soon as practicable on the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, which supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall contain an offer include as exhibits (without limitation) the Offer to purchase Purchase, a form of letter of transmittal, a form of summary advertisement and a related letter form of transmittal and summary advertisement notice of guaranteed delivery (such the Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will shall be made, together with any amendments and supplements or amendments thereto, being referred to herein as the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent all material respects with information concerning the requirements of Company and its Affiliates required by the Securities Exchange Act of 1934, as amended (to be set forth in the "Exchange Act"), Offer Documents. Parent and Merger Sub shall be entitled to include the ------------ rules Company Board Recommendation in the Offer Documents. Parent and regulations promulgated thereunder and Merger Sub agree to take all steps necessary to cause the Offer Documents on to be filed with the date first publishedSEC and disseminated to holders of Company Common Stock, sent or given in each case as and to the Company's stockholdersextent required by all Applicable Laws, shall not contain including the Exchange Act. If, prior to the Acceptance Time, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub event occurs with respect to Parent or any Affiliate of Parent, or any change occurs with respect to other information included by Parent in the Offer Documents (other than information supplied by the Company in writing for inclusion therein), on the one hand, or any event occurs with respect to the Company or any Subsidiary of the Company, or any change occurs with respect to other information supplied by the Company for inclusion in the Offer Documents. Each , on the other hand, upon becoming aware of Parentsuch information Parent or the Company, Merger Sub as applicable, shall promptly notify the other of such event and shall cooperate with the Company agrees other to promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of respect or as otherwise required by Applicable Law. Parent and Merger Sub further agrees 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 to be disseminated to the stockholders of the Company's stockholders, in each case as and to the extent required by applicable Federal securities lawsthe Exchange Act. The Parent shall promptly notify the Company and its counsel shall be given a reasonable opportunity upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to review the Offer Documents and shall provide the Company with copies of all amendments correspondence between Parent and supplements thereto its respective Representatives, on the one hand, and the SEC, on the other hand. Parent shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments from the SEC with respect to the Offer Documents. Notwithstanding the foregoing, prior to their filing with or mailing the Offer Documents (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, Parent shall (i) provide the Company with an opportunity to review and comment on such document or dissemination to stockholders response (including the proposed final version of such document or response) and (ii) consider in good faith all comments reasonably proposed by the Company. Parent and Merger Sub agree shall also take any other action (other than qualifying to provide do business in any jurisdiction in which it is not now so qualified) required to be taken under the Company Exchange Act or any applicable foreign or state securities laws and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff rules and regulations thereunder in connection with respect to the Offer Documents promptly after and the receipt of such commentsMerger.
(ci) For purposes of this Agreement and the Offer, unless agreed by Parent shall contribute to and Merger Sub on a timely basis the funds necessary to purchase Sub, any shares of Company Common Stock that Merger Sub becomes obligated subject to purchase pursuant notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the shares underlying such notices of guaranteed delivery are delivered to perform any of its other obligations pursuant to this AgreementMerger Sub.
Appears in 2 contracts
Sources: Merger Agreement (Ig Design Group Americas, Inc.), Merger Agreement (CSS Industries Inc)
The Offer. Parent shall cause Purchaser to, and Purchaser shall, as soon as practicable after the date hereof, but in any event within five business days after the public announcement of the execution hereof, commence (awithin the meaning of Rule 14d-2(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act") the Offer for all of the outstanding Shares at a price equal to the Per Share Amount, net to the sellers thereof in cash, subject to the conditions set forth in Annex I hereto (the "Offer Conditions") including the Minimum Condition (as defined therein) and the termination provisions of Section 8 hereof. Purchaser shall consummate the Offer on the terms and subject to the conditions provided in this Section 1.
1. Subject to the provisions terms and conditions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent Purchaser to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver by Purchaser of the Offer Conditions. The Offer shall be made by means of an offer to purchase which shall contain as conditions only the Minimum Condition and the other conditions set forth in Exhibit A (any Annex I hereto, and, subject to the succeeding sentence, shall otherwise contain, and be entirely consistent with, the terms and conditions of which may be waived by Merger Sub the Offer as described in this Agreement. Each of Purchaser and Parent expressly reserves the right, in its sole discretion, to waive any such condition and make any other changes to the terms of the Offer, provided that, without the consent of the Company, Merger Sub neither Parent nor Purchaser shall not (i) amend or waive the Minimum Condition or the HSR Condition (as defined in Exhibit A5 herein)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share amend any other condition of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)as set forth herein or in Annex I hereto, (iii) modify or add to reduce the conditions set forth in Exhibit APer Share Amount, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable to be paid in the Offer (other than by increasing adding cash consideration), (v) reduce the cash offer price) maximum number of Shares to be purchased in the Offer, or (vi) amend or modify any other term of the Offer in any a manner adverse to any which, in the reasonable judgment of the Company's stockholders, is adverse to the holders of Shares. The initial expiration date Per Share Amount shall be September 15net to the sellers in cash, 1997without interest, subject to reduction only for any applicable federal back-up withholding taxes. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Article 8, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond the then-scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then-scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Common Stock accept for payment and pay for the Shares shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived, and, at the request of the Company, Purchaser shall, subject to Parent's right to terminate this Agreement pursuant to Article 8, extend the Offer for additional periods up to but not later than September 30, 1998, unless the conditions not satisfied or earlier waived on the then-scheduled expiration date are one or more of the Minimum Condition or the conditions set forth in paragraphs (a), (c), (d) or (f) of Annex I hereto, provided that (x) if the only condition not satisfied is the Minimum Condition, the satisfaction or waiver of all other conditions shall have been publicly disclosed at least five business days before termination of the Offer and (y) if paragraph (a) or (f) of Annex I hereto has not been satisfied and the failure to so satisfy can be remedied, the Offer shall not be terminated unless the failure is not remedied within 30 calendar days after Parent has furnished the Company with written notice of such failure), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SECCommission") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2iii) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such an aggregate period as of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected without a meeting of the Company's stockholders in accordance with Section 253 of the Delaware General Corporation Law (the "DGCL"). In addition, the Per Share Amount may be requested by increased without the Company not to exceed ten business days from such scheduled expiration dateconsent of the Company. Subject to the terms and conditions of the Offer, including the Offer Conditions, Purchaser shall accept for payment and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly Shares duly tendered and not withdrawn pursuant at the earliest time at which it is permitted to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration do so under applicable provisions of the OfferExchange Act; providedprovided that, howeveras set forth above, that notwithstanding Purchaser shall have the -------- ------- foregoing Parent mayright, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar daysfive business days notwithstanding the prior satisfaction of the Offer Conditions, in order to attempt to satisfy the requirements of Section 253 of the DGCL. It is agreed that the Offer Conditions other than the Minimum Condition and the condition relating to the termination or expiration of applicable waiting periods under the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (the "HSR Act") as (the Company "HSR Condition") are solely for the benefit of Purchaser and may request. No such request shall be made asserted by Purchaser regardless of the Company ifcircumstances resulting in a condition not being satisfied (except for any action or inaction by Purchaser or Parent constituting a breach of this Agreement) or, except with respect to the Minimum Condition and the HSR Condition, may be waived by Purchaser, in whole or in part at any time and from time to time, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) discretion. On the date of commencement of the Offer, Parent and Merger Sub Purchaser, with the cooperation of, and prior review thereof by, the Company, shall file with the SEC Commission a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall Offer that will contain an offer to purchase or will incorporate by reference the Offer (or portions thereof) and a forms of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be madedocuments, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents Schedule 14D-1, and all amendments and supplements thereto, shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act")all applicable federal securities laws. Purchaser, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub Company with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents, agree promptly to correct the Schedule 14D-1 or the Offer 2 6 Documents if and to the extent that such information any of them shall have become false or misleading in any material respectrespect or any event occurs which should be set forth in an amendment or supplement to the Schedule 14D-1, and each of Parent and Merger Sub further agrees to Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended corrected or supplemented to be filed with the SEC Commission and such Offer Documents as so corrected to be disseminated to holders of Shares and any other holders of securities of the Company's stockholdersCompany (if any), in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. In addition, Parent and Merger Sub Purchaser agree to promptly provide the Company and its counsel in writing with any comments Parent, Merger Sub 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 commentsstaff.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Bowne & Co Inc), Agreement and Plan of Merger (Bowne & Co Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but practicable, and in any event no event later more than the fifth business day from and including ten Business Days, after the date of the public announcement of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. ; provided that Parent and Merger Sub Subsidiary may at waive any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant conditions to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall Minimum Condition, which may not be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, waived without the prior written consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or may make changes in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreementexcept that, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to without the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request written consent of the Company, no change may be made to the form of consideration to be paid, no decrease in the Offer Price or the number of Shares sought in the Offer may be made, no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company ifOffer, except in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997accordance with Section 2.01(c).
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect TO (as amended and supplemented from time to time, the Offer"Schedule TO"), which shall comply in all material respects with the provisions of applicable federal securities laws, and shall contain an the offer to purchase relating to the Offer and a forms of the related letter of transmittal and summary advertisement other appropriate documents (such Schedule 14D-1 and the documents and exhibits included therein pursuant which documents, as amended or supplemented from time to which the Offer will be madetime, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Parent and the Merger Subsidiary further agree to disseminate the Offer --------------- Documents to holders of Shares as and to the extent required by applicable federal securities laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (and any other applicable laws necessary to be complied with in connection with the "Exchange Act"), Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the ------------ rules Company's stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and regulations promulgated thereunder its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents on prior to their filing with the date first published, sent or given SEC. Parent and Merger Subsidiary agree to provide the Company's stockholders, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub oral) with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsDocuments promptly after receipt thereof and any responses thereto. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees 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 to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentslaw.
(c) The initial scheduled expiration date of the Offer shall be 20 Business Days after the date of its commencement. Notwithstanding the foregoing, Parent and Merger Subsidiary shall have the right to extend the Offer (i) from time to time if, at any scheduled expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived, until such conditions are satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A is not satisfied or waived as a result of the occurrence of any of the events described in subparagraphs (b) or (g) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the request of the Company (but in no event shall Parent and Merger Subsidiary be obligated to extend expiration of the Offer pursuant to this clause (i) beyond August 15, 2004), (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law, (iii) on one or more occasions (all such occasions aggregating not more than ten Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, all of the conditions to Merger Subsidiary's obligations to accept for payment Shares are satisfied or waived, but the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent's decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (d) and (f) on Annex A and of its right to terminate the Agreement under Sections 8.01(b), (d), (j) or (k), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any extended expiration date of the Offer, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the "Subsequent Period") pursuant to Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Parent and Merger Subsidiary shall also have the right to extend the Offer in accordance with Section 8.01(f).
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall contribute cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer.
(e) The Offer and to perform any Price may be increased by the Parent without the consent of its other obligations pursuant to this Agreementthe Company, in which case the Offer shall be extended, without the consent of the Company, as required by applicable law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Encana Corp), Merger Agreement (Brown Tom Inc /De)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall amend the Offer to reflect this Agreement and amend the conditions to the Offer in no event later than the fifth business day from and including the accordance herewith. The expiration date of the public announcement Offer shall be the tenth day, other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (each a "BUSINESS DAY"), from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, Merger Sub shalldated August 8, 2002 and contained in the Schedule TO, and Parent shall cause Merger Sub toa related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, commence together with any supplements or amendments thereto, the Offer"OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of 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 tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Merger Parent and Sub in its sole their reasonable discretion, provided that, without the consent of the Company, Merger except that Parent and Sub shall not waive the Minimum Condition (as defined in Exhibit A)without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger and Sub expressly reserves reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Parent and Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Price; (iii) modify amend or add to the conditions set forth in Exhibit A, Offer Conditions; (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, ; (v) change the form of or reduce the consideration payable in the Offer (other than by increasing the cash offer price) Offer; or (vi) amend or modify any other term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Stockholders. Notwithstanding the foregoing, Merger Parent and Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SECCOMMISSION") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; (Aiii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason on one or more occasions for an aggregate period as may be requested by of not more than 10 Business Days beyond the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% this sentence; or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, (iv) extend the Offer for such number one or more subsequent offering periods of days (up to an additional 20 calendar days) as Business Days in the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein aggregate pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "ACCEPTANCE DATE"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) As promptly as practicable after this Agreement is executed by Parent, Sub and the ------------ rules Company, Parent and regulations promulgated thereunder Sub shall file with the Commission an amendment to the Schedule TO. The Schedule TO shall reflect the terms of this Agreement, amend the conditions to the Offer in accordance herewith and contain the Offer Documents. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except ; provided that no representation covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing or any Company Stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 Commission and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersCompany Stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC Commission or dissemination to stockholders of the CompanyCompany Stockholders. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff Commission with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase accept for payment, and 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
The Offer. (a) Subject to the provisions of this AgreementAgreement and this Agreement not having been terminated in accordance with Article 10 hereof, as promptly as practicable but in no any event later than the fifth within five business day from and including days after the date of the public announcement of this Agreementhereof, Merger Sub shallshall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and Parent shall cause Merger Sub tothe rules and regulations promulgated thereunder (the "Exchange Act"), commence an offer to purchase all of the outstanding shares of Class A Common Stock, par value $.001 per share ("Class A Common Stock"), and Class B Common Stock, par value $.001 per share ("Class B Common Stock," and, together with the Class A Common Stock, the "Common Stock"), of the Company at a price of $37.00 per share of Common Stock, net to the seller in cash (the "Offer"). The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of 6 Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) hereto and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant Subject to the Offerprovisions of this Agreement, but no such assignment the Offer shall relieve Parent or Merger Sub expire 20 business days after the date of its obligations hereunder. commencement, unless this Agreement is terminated in accordance with Article 10, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) Merger Sub expressly reserves the right to modify the terms of the Offer and to waive any condition of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iiiii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit AOffer, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend or modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to any the holders of Common Stock or (vii) impose additional conditions to the Company's stockholders. The initial expiration date shall be September 15, 1997Offer other than such conditions required by applicable Law (as hereinafter defined). Notwithstanding anything herein to the foregoingcontrary, Merger Sub may, in its sole discretion without the consent of the Company, but subject extend the Offer at any time and from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), time (i) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase accept for payment and pay for shares of Common Stock shall not be satisfied, until such time as such conditions are have been satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the its staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (Aiii) in for any period required by applicable Law and (iv) if all Offer conditions are satisfied or waived but the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure number of one or more shares of Common Stock tendered is less than 90% of the conditions set forth in then outstanding number of shares of Common Stock, for an aggregate period of not more than 20 business days (for all such extensions under this clause (iv)) beyond the first sentence of the introductory paragraph or paragraphs latest expiration date that would be permitted under clause (ai), (ii) or (giii) of Exhibit A this sentence. So long as this Agreement is in effect and the conditions to be the Offer have not been satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such an aggregate period as may be requested by the Company of not to exceed ten more than 5 business days from (for all such extensions) beyond the originally scheduled expiration datedate of the Offer. Such period of 5 business days shall include any grace period contemplated by clause (d)(ii) of Exhibit A that extends beyond the otherwise scheduled expiration date of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shallshall accept for payment and pay for, and Parent shall cause Merger Sub toin accordance with the terms of the Offer, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Sinter Metals Inc), Merger Agreement (GKN Powder Metallurgy Inc)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have been terminated in no event later than the fifth business day from and including the date of the public announcement of this Agreementaccordance with Section 7.1, Merger Sub shall, and Parent shall cause Merger Sub toto (i) as promptly as practicable following the execution of this Agreement, and in any event within three Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing) commence (within the Offermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) the Offer to purchase all outstanding Shares at the Per Share Amount. The obligation Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable federal backup withholding or stock transfer taxes payable by the seller. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject to only to the those conditions set forth in Exhibit A Annex III (the “Tender Offer Conditions”). The Company agrees that no Shares held by the Company or any of which its Subsidiaries (other than any Shares held on behalf of third parties) will be tendered pursuant to the Offer. For the avoidance of doubt, the parties hereto agree that Restricted Shares may be waived tendered in the Offer and be acquired by Parent or Merger Sub in its sole discretionpursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Sections 1A.1(c) and (d), to waive any Tender Offer Condition or increase the Per Share Amount, provided that, that without the prior written consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) not, and to the terms and conditions of this Agreement. Parent shall cause Merger Sub may at any time transfer or assign not to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce decrease the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Per Share Amount or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer Offer, (other than by increasing ii) decrease the cash offer price) or number of Shares sought to be purchased in the Offer, (viiii) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure waive satisfaction of the Minimum Condition to be satisfied(as defined in Annex III), it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject (iv) impose additional conditions to the terms and conditions of the Offer and this AgreementOffer, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to (v) make any change in the Offer that Merger Sub becomes obligated would require an extension or delay of the then-current Expiration Date (other than an increase in the Per Share Amount), (vi) modify or amend the Tender Offer Conditions (other than to purchase pursuant to waive such Tender Offer Conditions, other than the Offer immediately after the expiration Minimum Condition) or (vii) modify or amend any other term of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretionthe case of this clause (vii), extend in any manner (A) adverse to the expiration date holders of the Offer for a period not Shares or (B) which would reasonably be expected to exceed ten business days and in no event ending after December 31result in, 1997, if Parent reasonably believes that as a result of such extension 90% individually or more of the Shares will be tendered in the Offer. Ifaggregate, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997a Parent Material Adverse Effect.
(bc) On the date of commencement of the Offer, Parent and Merger Sub shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, Offer which shall contain an the offer to purchase (the “Offer to Purchase”) and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents and exhibits included therein instruments pursuant to which the Offer will be made, together made (collectively with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent respect and Merger Sub shall, and Parent further agrees to cause Merger Sub 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, as so corrected or supplemented, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the and comment on any Offer Documents and all amendments and supplements thereto prior to their filing (including each amendment or supplement thereto) before they are filed with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree shall, and Parent agrees to cause Merger Sub to, provide the Company with (in writing, if written), and its counsel to consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents as promptly as practicable after the receipt of thereof. The Company and its counsel shall be given a reasonable opportunity to review any such commentswritten and oral comments and proposed responses.
(cd) The Offer to Purchase shall provide for an expiration date of the 20th Business Day (as defined in Rule 14d-1 under the Exchange Act, “Business Day”) following (and including the day of) the commencement of the Offer (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this agreement, the “Expiration Date”). Merger Sub shall not and Parent agrees that it shall cause Merger Sub to not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, Merger Sub may, without Parent receiving the consent of the Company, (A) extend the Expiration Date for any period required by applicable rules and regulations of the SEC or the New York Stock Exchange applicable to the Offer or (B) elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act. So long as the Offer and this Agreement have not been terminated pursuant to Section 7.1, if at any scheduled Expiration Date, the Tender Offer Conditions shall not have been satisfied or earlier waived, Merger Sub shall, and Parent shall contribute cause Merger Sub to extend the Offer and the Expiration Date to a date that is not more than five Business Days after such previously scheduled Expiration Date; provided that Merger Sub shall not and Parent shall not be required to cause Merger Sub to extend the Offer beyond the End Date. In the event the Acceptance Date occurs but Parent does not acquire a sufficient number of Shares to enable a Short Form Merger to occur, Merger Sub shall, and Parent shall cause Merger Sub to provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 15 Business Days, in accordance with Rule 14d-11 under the Exchange Act; provided that Merger Sub shall, and Parent shall cause Merger Sub to immediately accept and promptly pay for all Shares tendered during the initial offering period and immediately accept and promptly pay for all Shares tendered during such subsequent offering period, in each case in accordance with Rule 14d-11 under the Exchange Act.
(e) Subject solely to the satisfaction or waiver by Merger Sub in accordance with Section 1A.1(b) of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub, as soon as possible after the expiration of the Offer, to accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”). Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Elkcorp), Agreement and Plan of Merger (CGEA Investor, Inc.)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth five business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer to purchase all of the outstanding shares of Company Common Stock; provided, that the Company agrees that no shares of Company Common Stock owned by the Company or any Company Subsidiary will be tendered pursuant to the Offer. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 45th calendar day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rule 14d-1(g)(3) under the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any 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 shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the Offer (other than by increasing the cash offer price) Conditions, or (viv) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of Company Common Stock.
(ii) Notwithstanding anything in this Agreement to the Company's stockholders. The initial expiration date shall be September 15contrary, 1997. Notwithstanding the foregoingand without limiting Parent’s or Merger Sub’s obligations under this Section 1.1(a)(ii), Merger Sub (A) may, in its sole discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for any period, if at the on any then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or, in Merger Sub’s sole discretion, waived, until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC") or ”), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: (A) in the event it would otherwise be entitled required to terminate extend the Offer at any scheduled expiration thereof due to (1) beyond the failure of one or more of the conditions set forth Outside Date (as defined in the first sentence of the introductory paragraph or paragraphs (aSection 8.1(b)(i)) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 at any time that Parent or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it Merger Sub is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right permitted to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs pursuant to ARTICLE VIII.
(diii) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request Parent and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event agree that Merger Sub would otherwise be entitled to terminate the Offer at if on any scheduled expiration date thereof due solely to the failure of the Offer, the Minimum Tender Condition to be satisfiedis not satisfied but all of the other Offer Conditions set forth in Exhibit A are satisfied or, it in Merger Sub’s sole discretion, waived, then Merger Sub shall, at the request of the Companyand Parent shall cause Merger Sub to, extend the Offer for such period as may a ten calendar day period; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than one time, and in no event shall Merger Sub be requested by required to extend the Company not Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to exceed ten business days from such scheduled expiration date. Subject terminate this Agreement pursuant to ARTICLE VIII.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a)). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; providedOffer is referred to in this Agreement as the “Offer Closing”, however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (up to 20 calendar daysas defined below) as the Company may request. No such request shall be made by the Company ifmay, in its Merger Sub’s sole judgmentdiscretion, it concludes that the Merger could be consummated on or prior to October 6, 1997provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated 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 stockholders of the circumstances under which they were made, not misleading, except that no representation is made Company as and to the extent required by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsFederal securities laws. Each of Parent, Merger Sub and the Company agrees shall promptly to 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 become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 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 applicable Federal securities laws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given a reasonable opportunity 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 SEC, on the other hand. Prior to review the filing of the Offer Documents and all amendments and supplements thereto prior to their filing (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 Merger Sub agree to shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. In the event that Parent or Merger Sub receives any comments Parent, Merger Sub or their counsel 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 to such comments and (ii) take all other actions necessary to resolve the receipt of such commentsissues raised therein.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds consideration 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 and shall cause Merger Sub to perform any fulfill all of its other Merger Sub’s obligations pursuant to under this Agreement.
(d) Parent, Merger Sub or the paying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Paying Agent is required to deduct and 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, local or foreign Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 2 contracts
Sources: Merger Agreement (Indevus Pharmaceuticals Inc), Merger Agreement (Endo Pharmaceuticals Holdings Inc)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 7.1 and none of the provisions of this Agreementevents set forth in Exhibit A shall have occurred and be continuing, as promptly as practicable but in no event later than the fifth business day from and including ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, to commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction of each of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion), provided thatprovided, however, that Sub will return or cause to be returned all stock certificates tendered to it by any holders of Shares if the Offer expires or terminates without the consent Sub having accepted all of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares shares validly tendered for payment pursuant to the Offer, but no Offer (the time at which such assignment acceptance for payment occurs being referred to herein as the “Offer Closing”). The expiration date of the Offer shall relieve Parent or Merger Sub be the 20th Business Day following the commencement of its obligations hereunderthe Offer (the “Expected Expiration Date”). Merger Sub expressly reserves the right to modify the terms of the OfferOffer with at least two (2) business days written notice to the Company, setting forth in full detail any such change, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iiiii) modify or add to the conditions set forth in Exhibit A, (iviii) except as provided in the remainder of this Section 1.1below, extend the Offer, (viv) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (viv) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain for any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of period agreed upon by Parent and the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly pay for all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; providedOffer and, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date during any extension of the Offer for pursuant to a subsequent offering period not to exceed ten business days and in no event ending under Rule 14d-11 under the Exchange Act, as soon as practicable after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been are validly tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents ”) and to cause the such Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to holders of the Company's stockholders, Shares in each case as and to the extent required by accordance with applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity at least two (2) Business Days to review and comment on the Offer Documents and all amendments and supplements thereto (including any amendment thereto) prior to their the filing thereof with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsSEC.
(c) Parent shall contribute to Merger Sub on a timely basis During the funds necessary to purchase any shares of Common Stock period(s) that Merger Sub becomes obligated to purchase pursuant to the Offer is in effect, each of Parent and Sub, on the one hand, and the Company on the other hand, will (i) promptly inform the other of any material communication with holders of Company Common Stock, or any person purporting to perform act on their behalf, and any communication with any Governmental Entity of its which it becomes aware, concerning this Agreement or any Transaction and (ii) keep the other obligations pursuant to this Agreementreasonably informed of developments regarding the number of Shares tendered in or withdrawn from the Offer.
Appears in 2 contracts
Sources: Tender Offer Agreement (Unioil), Tender Offer Agreement (Petroleum Development Corp)
The Offer. (a) Subject to Provided that (1) none of the provisions events or circumstances set forth in paragraphs (a) through (g) of this AgreementAnnex A hereto shall have occurred and be existing (and shall not have been waived by Merger Sub) and (2) the Company shall have complied in all material respects with its obligations under Section 1.2, as promptly as practicable reasonably practicable, but in no event later than ten (10) business days (as defined in Rule 14d-1(g)(3) promulgated by the fifth business day from United States Securities and including 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, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the SEC. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent Annex A. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderOffer (determined using Exchange Act Rule 14d-1(g)(3)). Merger Sub expressly reserves the right to waive any condition to the Offer, to increase the price per Share payable in the Offer and/or to modify the other terms of the Offer, except that, without the 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 price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or waive the Minimum Tender Condition (as defined in Annex A), (iv) add to the conditions set forth in Exhibit AAnnex A or modify any condition set forth in Annex A in a manner adverse to the holders of Company Common Stock, (ivv) extend the Offer (except as provided in the remainder of this Section 1.1, extend the Offerbelow), (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to extend the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), Offer (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (Aii) in if at the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to date of the failure of one or more Offer, any of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit Annex A to be shall not have been satisfied or waived, it for one (1) or more periods of not more than ten (10) business days each, until such time as such conditions are satisfied or waived, or (iii) for one (1) or more periods for an aggregate period of not more than twenty (20) business days beyond the latest expiration date that would otherwise be permitted if, on such expiration date, there shall give not have been tendered and not withdrawn that number of Shares that, together with any Shares then owned by Parent, would equal ninety percent (90%) or more of the Company notice thereof andissued and outstanding Shares; provided that if Merger Sub shall extend the offer pursuant to this clause (iii), Merger Sub shall waive during such extension all conditions set forth in Annex A other than the Minimum Tender Condition, the Regulatory Condition and the conditions set forth in paragraphs (a), (b) and (f) therein. In addition, subject to Parent’s right to terminate this Agreement pursuant to Section 9.1, (i) if at the initially scheduled expiration date of the Offer, any one or more of the Minimum Tender Condition, the Regulatory Condition or the conditions set forth in paragraphs (a), (b), (e) or (f) of Annex A are not satisfied, at the request of the CompanyCompany Merger Sub shall, if such conditions are reasonably likely to be satisfied during the requested extension periodand Parent shall cause Merger Sub to, extend the Offer until the earlier of offer one (1) such time as such condition is, or conditions are, satisfied or waived for a period of up to ten (10) business days and (2ii) if at any extended expiration date of the date chosen by Offer, the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Regulatory Condition or the conditions specified set forth in paragraphs (de) or (ef) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the CompanyCompany Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for increments of not more than ten (10) business days each until such period time as may such conditions are satisfied or waived; provided that Merger Sub shall not be requested required to extend the Offer beyond the Outside Date. Further, Merger Sub may, without the consent of the Company, make available a “subsequent offering period”, in accordance with Rule 14d-11 promulgated by the Company not SEC under the Exchange Act, for up to exceed ten twenty (20) business days from such scheduled expiration datedays. Subject to 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 of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided. For the avoidance of doubt, however, the parties hereto agree that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date shares of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will Restricted Stock may be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, Offer and not withdrawn, fewer than 90% of the Shares, then be acquired by Parent or Merger Sub shall, at pursuant to the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as to form in promptly provide Parent with all material respects with information concerning the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact Company that is required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion included in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 Company Common Stock, in each case as and to the extent required by applicable Federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing before they are filed with the SEC or dissemination and disseminated to stockholders of the Companystockholders. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, shall consult with the Company and its counsel prior to responding to any such comments and shall provide the Company with copies of all such responses.
(c) Parent shall contribute 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Sources: Merger Agreement (Pfizer Inc), Merger Agreement (Encysive Pharmaceuticals Inc)
The Offer. (a) Subject to Provided that none of the provisions of this Agreementconditions set forth on Exhibit A hereto shall have occurred and be continuing, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement (on the date hereof or the following day) by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole discretion, ; provided that, without the express written consent of the Company, Merger Sub shall may not waive the Minimum Stockholder Agreement Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify alter any other term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer for a specified period, if at the scheduled or any extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (AC) in the event it would otherwise be entitled to terminate extend the Offer at any scheduled expiration thereof due for up to ten business days if there have not been validly tendered and not withdrawn prior to the failure expiration of one or the Offer such number of Shares that, together with Shares subject to the Stockholder Agreement which have not been validly tendered, would constitute at least 90% of the fully diluted Shares as of the date of determination and (D) extend the Offer for any reason for up to two business days; provided that no more than three extensions shall be permitted under clauses (C) and (D) of this sentence. Subject only to the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedA, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (such Schedule 14D-1, as supplemented or amended from time to time, the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder thereunder, and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to written information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary sufficient to purchase accept for payment, and pay for, any shares of Common Stock and all Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(d) Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as may be required to be deducted and withheld with respect to perform the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or under any provision of its other obligations pursuant state, local or foreign tax law; provided, however, that Sub shall promptly pay any amounts deducted and withheld hereunder to this Agreementthe applicable governmental authority, shall promptly file all tax returns and reports required to be filed in respect of such deductions and withholding, and shall promptly provide to the Company proof of such payment and a copy of all such tax returns and reports.
Appears in 1 contract
Sources: Merger Agreement (Corange LTD)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall amend the Offer to reflect this Agreement and amend the conditions to the Offer in no event later than the fifth business day from and including the accordance herewith. The expiration date of the public announcement Offer shall be the tenth day, other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (each a "BUSINESS DAY"), from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, Merger Sub shalldated August 8, 2002 and contained in the Schedule TO, and Parent shall cause Merger Sub toa related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, commence together with any supplements or amendments thereto, the Offer"OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of 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 tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Merger Parent and Sub in its sole their reasonable discretion, provided that, without the consent of the Company, Merger except that Parent and Sub shall not waive the Minimum Condition (as defined in Exhibit A)without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger and Sub expressly reserves reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Parent and Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Price; (iii) modify amend or add to the conditions set forth in Exhibit A, Offer Conditions; (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, ; (v) change the form of or reduce the consideration payable in the Offer (other than by increasing the cash offer price) Offer; or (vi) amend or modify any other term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Stockholders. Notwithstanding the foregoing, Merger Parent and Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) shall extend the OfferOffer for no longer than five Business Days at any one time, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SECCOMMISSION") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; (Aiii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason on one or more occasions for an aggregate period as may be requested by of not more than 10 Business Days beyond the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% this sentence; or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, (iv) extend the Offer for such number one or more subsequent offering periods of days (up to an additional 20 calendar days) as Business Days in the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein aggregate pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "ACCEPTANCE DATE"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) As promptly as practicable after this Agreement is executed by Parent, Sub and the ------------ rules Company, Parent and regulations promulgated thereunder Sub shall file with the Commission an amendment to the Schedule TO. The Schedule TO shall reflect the terms of this Agreement, amend the conditions to the Offer in accordance herewith and contain the Offer Documents. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except ; provided that no representation covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing or any Company Stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 Commission and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersCompany Stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC Commission or dissemination to stockholders of the CompanyCompany Stockholders. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff Commission with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase accept for payment, and 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article VIII and subject to the provisions of conditions set forth in this AgreementAgreement and Exhibit A hereto, as promptly as reasonably practicable but in no event later than the fifth business day from and including after the date of the public announcement of this Agreementhereof, and in any event within seven (7) Business Days (as defined in Section 9.3(b) hereof) after such date, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence to accept for payment and pay for any Shares tendered pursuant to the Offer and accept for payment, and pay for, any shares of Common Stock tendered not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver by Merger Sub of the conditions set forth in Exhibit A hereto and the terms and conditions hereof (any of which may be waived by collectively, the “Offer Conditions”). Merger Sub may, in its sole discretion, provided that, without waive any Offer Condition or modify the consent terms or conditions of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to Offer consistent with the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) reduce the cash offer pricenumber of Shares to be purchased in the Offer, (iv) waive or change the Minimum Condition or the Termination Condition (as such terms are defined in Exhibit A), (v) add to the Offer Conditions or modify them in a manner adverse to the holders of Shares, (vi) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (vivii) amend or modify any term of the Offer set forth in any this Agreement in a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (I Flow Corp /De/)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article IX, then (i) not later than the provisions first Business Day after execution of this Agreement, Parent and Company shall issue a public announcement of the execution of this Agreement, and (ii) Subsidiary shall, as promptly as practicable practicable, but in no event later than the fifth five business day from and including days after the date of the such public announcement of this Agreement, Merger Sub shallannouncement, and Parent shall cause Merger Sub Subsidiary to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer. The Offer shall be made pursuant to the Offer to Purchase and
1. related Letter of Transmittal in form reasonably satisfactory to Company and containing the terms and conditions set forth in this Agreement. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub Subsidiary in its sole discretion, provided thatprovided, without however, that the consent of the Company, Merger Sub Subsidiary shall not waive the Minimum Condition (as defined in Exhibit A)) and to without the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion prior written consent of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderCompany). Merger Sub Subsidiary expressly reserves the right right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Merger Sub neither Parent nor Subsidiary shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder next sentence, change the expiration date of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend amend, alter, add or modify waive any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all Offer Conditions have not been satisfied or waived, Subsidiary may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days, and Subsidiary may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (iiA) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the SEC staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , and (AB) in the event it would otherwise be entitled to terminate extend the Offer at any scheduled expiration thereof due for up to ten Business Days if there have been validly tendered and not withdrawn prior to the failure expiration of one or more the Offer such number of Shares that would constitute at least 75% but less than 90% of the issued and outstanding Shares as of the date of determination. Subject only to the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedA, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, howeveraccept for payment, and pay for all Shares validly tendered and not withdrawn that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer Subsidiary becomes obligated to accept for a period not payment pursuant to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (as supplemented or amended from time to time, the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Subsidiary agree that the Offer --------------- Documents shall comply as to form and content in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder thereunder, and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub Subsidiary with respect to written information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees agree 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.steps
Appears in 1 contract
Sources: Merger Agreement (Urs Corp /New/)
The Offer. (a) Subject to the provisions of (i) Provided that this AgreementAgreement shall not have been terminated in accordance with Section 8.1, as promptly as practicable but in no event later than ten business days (as defined in Rule 14d-1(g)(3) promulgated by the fifth business day from United States Securities and including 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, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the SEC. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderOffer (determined using Exchange Act Rule 14d-1(g)(3)). Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the price per share Offer Price, (C) waive the Minimum Tender Condition (as defined in Exhibit A) unless (and only to the extent) the Minimum Tender Condition is not satisfied solely by reason of the failure of any holder of Shares to comply with his or its obligations under Section 3 of the Voting and Tender Agreement, (D) add to the Offer Conditions or modify any Offer Condition in a manner adverse to the holders of Company Common Stock to be paid pursuant to Stock, (E) extend the Offer (except pursuant to Section 3.4), (iii) modify as required or add to permitted by the conditions set forth in Exhibit A, (iv) except as provided in the remainder other provisions of this Section 1.1, extend the Offer), (vF) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (viG) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date Company Common Stock.
(ii) Parent and Merger Sub agree that Merger Sub shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, permitted to (without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), and shall (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to and Parent shall cause Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or Sub to):
(iiA) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. ; and
(B) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Merger Sub agrees that: (A) in the event shall, and Parent shall cause it would otherwise be entitled to terminate to, extend the Offer at any scheduled expiration thereof due to the failure of on one or more occasions in consecutive increments of up to ten business days each (or such longer period as the parties hereto may agree), until such time as such Offer Conditions are satisfied; provided, however, that (1) Merger Sub shall not be required to extend the Offer beyond the Outside Date (as defined in Section 8.1(b)(i)) or the termination of this Agreement and (2) if, at any expiration of the conditions set forth in the first sentence Offer, all of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Offer Conditions, except for the Minimum Tender Condition, are satisfied or have been waived, it Merger Sub shall give only be required to extend the Offer for one or more additional periods not to exceed an aggregate of twenty business days.
(iii) If fewer than 90% of the issued and outstanding shares of Company notice thereof andCommon Stock are accepted for payment pursuant to the Offer, then Merger Sub may, and at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementshall, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- upon any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested Parent shall cause Merger Sub to, make available a “subsequent offering period,” in accordance with Rule 14d-11 promulgated by the Company SEC under the Exchange Act, of not to exceed less than ten business days from such scheduled expiration date. Subject to days.
(iv) 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 of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided.
(v) Nothing contained in this Section 1.1(a) shall affect any termination rights in Article 8, howeveras to the Agreement, that notwithstanding the -------- ------- foregoing Parent mayor in Exhibit A, in its sole discretion, extend the expiration date of the Offer for a period not as to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents shall comply as to form Unless previously withdrawn in all material respects accordance with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"Section 6.8(d), Parent and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect shall be entitled to information supplied by include the Company Recommendations (as defined in writing for inclusion Section 3.3(b)) in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all any amendments and supplements thereto prior to their filing such documents with the SEC or dissemination of such documents to the stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel in writing any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, shall consult with the Company and its counsel prior to responding to such comments, and shall provide to the Company and its counsel a copy of any written responses thereto and telephonic notice of any oral responses or discussions with the SEC staff.
(c) Parent shall contribute 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
Sources: Merger Agreement (Cogent, Inc.)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent Conopco shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to, and of Parent Conopco to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent Section 7.01. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-2 of the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms of the Offer or waive any condition to the Offer, except that, without the 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 price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify reduce or waive the Minimum Tender Condition (as defined in Section 7.01), (iv) modify, in any manner adverse to the holders of Company Common Stock, or add to to, the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer7.01, (v) extend the Offer or (vi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer in increments of not more than five business days each, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (iii) make available a subsequent offering period (within the meaning of Rule 14d-11 of the SEC). Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate the Offer at that any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Section 7.01 is not satisfied or waived, it shall give waived at the Company notice thereof andscheduled expiration date of the Offer, at the request of the CompanyCompany Sub shall, if such conditions are reasonably likely to be satisfied during the requested extension periodand Conopco shall cause Sub to, extend the expiration date of the Offer in increments of five business days each until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2w) the date chosen by the Companysatisfaction or waiver of such condition, which shall not be later than (x) December 31Conopco reasonably determines that such condition to the Offer is not capable of being satisfied on or prior to September 30, 1997 or 2000, (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach termination of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the its terms of this Section 1.1(a); and (Bz) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfiedSeptember 30, it shall2000. In addition, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to 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 of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent Conopco and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of ParentConopco, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Conopco and Merger Sub further agrees to 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 to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable Federal securities laws. The Company Conopco and its counsel Sub shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel in writing with any comments ParentConopco, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Conopco Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article IX and after the date hereof and prior to the commencement of the Offer none of the conditions set forth in Annex I hereto (the "Tender Offer Conditions") shall be incapable of being satisfied prior to the Offer Closing Date, as promptly as practicable, but not later than 10 Business Days following the date hereof, Cathay shall (i) commence an offer to purchase any and all outstanding shares of Company Common Stock for a per share consideration of either (A) an amount in cash, without interest, equal to $58.44 (the "Per Share Cash Consideration") or (B) that number of shares of Cathay Common Stock equal to the Exchange Ratio (collectively with the Per Share Cash Consideration, the "Offer Consideration"), subject to the provisions of this AgreementSection 2.2(d) with respect to the aggregate number of shares of Cathay Common Stock issued and the aggregate amount of cash paid, (ii) cause the Offer to remain open for 20 Business Days, (iii) take the actions set forth in Section 1.2(d) below and (iv) take all other actions as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offerrequired by law. The obligation of Merger Sub to, and of Parent Cathay to cause Merger Sub to, commence the Offer and accept for payment, and payment or pay for, for any shares of Company Common Stock tendered pursuant to the Offer shall thereto will be subject only to the conditions set forth in Exhibit A satisfaction or waiver of the Tender Offer Conditions.
(any of which may be waived by Merger Sub in its sole discretion, provided that, without b) Without the prior written consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Cathay shall not (i) impose conditions to the Offer in addition to the Tender Offer Conditions, (ii) modify or amend the Tender Offer Conditions or any other term of the Offer in a manner adverse to the holders of shares of Company Common Stock, (iii) reduce the number of shares of Company Common Stock subject to the Offer, (iiiv) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Consideration, (iii) modify or add to the conditions set forth in Exhibit A, (ivv) except as provided in the remainder of this Section 1.1following sentence, extend the OfferOffer if all of the Tender Offer Conditions are satisfied or waived, or (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub Cathay may, in accordance with applicable law, at its sole discretion, and without the consent of the Company, but subject extend the Offer at any time, and from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)time, (ix) extend the Offer, if at the then-scheduled expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Tender Offer Conditions shall not be satisfied, until such time as such conditions are have been satisfied or waived or waived, and (iiy) extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC") or the its staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided further, that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be has been satisfied, it shall, Cathay may at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if option and to the extent that such information shall have become false or misleading in any material respectpermitted by applicable law, accept the tendered shares for payment and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement extend the Offer Documents and pursuant to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and subsequent offering period for an aggregate period of not more than 20 Business Days (for all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsextensions).
(c) Parent shall contribute to Merger Sub on a timely basis In connection with the funds necessary to purchase Offer, the Company will promptly furnish Cathay with mailing labels, security position listings, any non-objecting beneficial owner lists and any available listing containing the names and addresses of the record holders of shares of Company Common Stock as of the most recent practicable date and shall furnish Cathay with such additional information (including, but not limited to, updated lists of holders of shares of Company Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists) and such other assistance as Cathay or its agents may reasonably request in communicating the Offer to the Company's record and beneficial shareholders.
(d) Provided that Merger Sub becomes obligated this Agreement shall not have been terminated in accordance with Article IX and after the date hereof and prior to purchase pursuant the commencement of the Offer none of the Tender Offer Conditions shall be incapable of being satisfied prior to the Offer Closing Date, as promptly as practicable, but no later than 10 Business Days following the date hereof, Cathay shall mail to the holders of shares of Company Common Stock (i) an offer to purchase, (ii) forms of the related letter of transmittal to be completed, signed and returned to perform any the Exchange Agent by each such holder, (iii) a Tender Election Form (which may be incorporated into the letter of its other obligations pursuant transmittal) to this Agreement.be completed, signed and returned to the Exchange Agent by each such holder,
Appears in 1 contract
The Offer. (a) Subject to the provisions of Unless this AgreementAgreement shall have been terminated in accordance with Section 10.01, as promptly as practicable after the date of this Agreement, but in no event later than five (5) business days (unless otherwise agreed to by Super ROI and the fifth business day from Company and including approved by the Special Committee) following the date of this Agreement (subject to the public announcement of this AgreementCompany having timely provided any information required to be provided by it pursuant to Section 2.01(f)), Merger Sub shall, and Parent shall (and Super ROI shall cause Merger Sub Parent to, ) commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer. The obligation of Merger Sub Parent to, and of Parent Super ROI to cause Merger Sub Parent to, commence the Offer and accept for payment, payment Class A Ordinary Shares and pay for, any shares of Common Stock ADSs tendered pursuant to the Offer shall will be subject only to the satisfaction of each of the conditions set forth in Exhibit Annex A (the “Offer Conditions”). Super ROI and Parent expressly reserve the right to (i) waive, in whole or in part, any of which may be waived by Merger Sub Offer Condition at any time and from time to time, in its their sole discretion, provided that, without (ii) increase the consent of Offer Price payable in the Company, Merger Sub shall not waive the Minimum Condition Offer and (as defined iii) make any other changes in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment subject, in each case, to the provisions of Section 2.01(b).
(b) Parent shall relieve not, and Super ROI shall not permit Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except thatto, without the prior written consent of the Company, Merger Sub Company (which consent shall not (i) reduce have been approved by the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4Special Committee), (iii1) modify decrease the Offer Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (2) reduce the number of Class A Ordinary Shares and ADSs to be purchased in the Offer, (3) impose conditions to the Offer in addition to those set forth in Annex A, (other than by increasing 4) waive or change the cash offer price) Minimum Condition or the Financing Condition, or (vi5) amend or modify any other term of the Offer in any a manner adverse to the Company’s Unaffiliated Security Holders.
(c) Unless extended as provided in this Agreement or as may otherwise be agreed to by Super ROI and the Company (which agreement shall have been approved by the Special Committee), the Offer shall expire one minute after 11:59 p.m., New York City time, on the date that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) after the commencement of the Offer. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, unless this Agreement shall have been terminated in accordance with Section 10.01:
(i) in no event shall Parent be permitted without the Company’s prior written consent (which consent shall have been approved by the Special Committee) or required to extend the Offer beyond the Outside Date; and
(ii) subject to the foregoing clause (i):
(A) if, immediately prior to the then-effective expiration time of the Offer, any of the Company's stockholders. The initial expiration date Offer Conditions (other than any Offer Condition that, by its nature, is to be satisfied only immediately prior to the Acceptance Time) has not been satisfied or, to the extent permitted by this Agreement and applicable Law, waived by Parent (to the extent waivable by Parent), then, Parent may or, at the written request of the Company (which request shall have been approved by the Special Committee), Parent shall (and Super ROI shall cause Parent to), extend the Offer for one or more periods, in consecutive increments of not more than 10 business days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) each (or such other duration as may be September 15agreed to by Super ROI and the Company (which agreement shall have been approved by the Special Committee)), 1997. Notwithstanding the foregoing, Merger Sub may, to permit such Offer Condition to be satisfied; provided that in no event shall Parent be permitted without the Company’s prior written consent of (which consent shall have been approved by the Company, but subject Special Committee) or required to extend the Company's right to terminate this Agreement Offer pursuant to Section 8.1(b)(ii)this clause (A) beyond one minute after 11:59 p.m., New York City time, on the date that is 20 business days (icalculated as set forth in Rule 14d-1(g)(3) extend promulgated under the Offer, if at Exchange Act) after the scheduled expiration date that all of the Offer Conditions (other than any of Offer Condition that, by its nature, is to be satisfied only immediately prior to the conditions to Merger Sub's obligation to purchase shares of Common Stock Acceptance Time) have been satisfied;
(B) Parent shall not be satisfied, until such time as such conditions are satisfied or waived or (iiand Super ROI shall cause Parent to) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities SEC or its staff or by any rule, regulation or position of NYSE or by any applicable U.S. federal securities law. The time when the Offer expires (taking into account any permitted or required extensions in accordance with this Section 2.01(c)) is referenced herein as the “Expiration Time”.
(d) Parent shall not (and Exchange Commission (Super ROI shall cause Parent not to) terminate or withdraw the "SEC") or the staff thereof applicable --- Offer prior to the Offer Expiration Time unless this Agreement has been terminated in accordance with Section 10.01. Nothing in this Section 2.01 shall impair, limit or in order to obtain any material regulatory approval applicable to otherwise restrict the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request respective rights of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived Super ROI and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right Parent to terminate this Agreement in accordance with Section 10.01. In the event that this Agreement is validly terminated in accordance with Section 10.01, Parent shall (and Super ROI shall cause Parent to) promptly (and in any event within one business day), irrevocably and unconditionally terminate the Offer. In the event that the Company Offer is validly terminated, Parent shall not acquire any Class A Ordinary Shares or ADSs pursuant to the Offer and shall cause any tender agent for the Offer acting on its behalf to return, in breach hereof accordance with applicable Law, any tendered Class A Ordinary Shares or ADSs to the conditions specified in paragraphs (d) or registered holders thereof.
(e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions set forth in this Agreement and to the satisfaction or, to the extent permitted by this Agreement and applicable Law, waiver by Parent of each of the Offer and this AgreementConditions (to the extent waivable by Parent), Merger Sub shall, and Parent shall (and Super ROI shall cause Merger Sub Parent to) (i) accept for payment, pay for promptly after the Expiration Time, all shares of Common Stock Class A Ordinary Shares and ADSs validly tendered (and not withdrawn validly withdrawn) pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to (the Offer immediately after the expiration of time at which Class A Ordinary Shares and ADSs are first accepted for payment under the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend “Acceptance Time”) and (ii) promptly pay (or cause the expiration date of the Offer for a period not Paying Agent to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer pay) for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Class A Ordinary Shares and ADSs.
(bf) On As promptly as reasonably practicable on the date of commencement of the Offer, Super ROI and Parent and Merger Sub shall file with the SEC a combined Tender Offer Statement on and Rule 13E-3 Transaction Statement under cover of Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which shall . The Schedule TO will contain an or incorporate by reference the related offer to purchase and a related purchase, form of letter of transmittal transmittal, summary advertisement, if any, and summary advertisement (such Schedule 14D-1 and other documents required pursuant to Section 14(d) of the documents and exhibits included therein Exchange Act or Regulation 14D, as applicable, pursuant to which the Offer will be mademade (collectively, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). The Super ROI and Parent shall cause the Offer --------------- Documents shall comply as to form in all material respects with be disseminated to holders of Class A Ordinary Shares and ADSs to the requirements of extent required by applicable U.S. federal securities laws or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder of NYSE. The Company shall promptly furnish to Super ROI and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to all information supplied by concerning the Company in writing that may be required by applicable securities laws or reasonably requested by Super ROI or Parent for inclusion in the Offer Documents. Each of ParentSuper ROI, Merger Sub Parent and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectmisleading, and each of Super ROI and Parent and Merger Sub further agrees 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 SEC, and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersholders of Class A Ordinary Shares and ADSs, in each case as and to the extent required by applicable Federal federal securities lawslaws or the rules and regulations of NYSE to give effect to the Offer. The Company Super ROI and its counsel Parent shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its legal counsel with (i) any comments Parentor other communications, Merger Sub whether written or their oral, that the Company or its legal counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or any Offer Documents Document promptly after the receipt of such comments.
those comments or other communications and (cii) Parent shall contribute a reasonable opportunity to Merger Sub on a timely basis the funds necessary participate in Super ROI’s and Parent’s response to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer those comments and to perform provide comments on that response (to which reasonable and good faith consideration shall be given), including by using reasonable best efforts to give the Company and its legal counsel the opportunity to participate with Super ROI, Parent and their legal counsel in any of its other obligations pursuant to this Agreementsubstantive discussions or meetings with the SEC.
Appears in 1 contract
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article IX, then (i) not later than the provisions first Business Day after execution of this Agreement, Parent and Company shall issue a public announcement of the execution of this Agreement, and (ii) Subsidiary shall, as promptly as practicable practicable, but in no event later than the fifth five business day from and including days after the date of the such public announcement of this Agreement, Merger Sub shallannouncement, and Parent shall cause Merger Sub Subsidiary to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer. The Offer shall be made pursuant to the Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to Company and containing the terms and conditions set forth in this Agreement. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub Subsidiary in its sole discretion, provided thatPROVIDED, without HOWEVER, that the consent of the Company, Merger Sub Subsidiary shall not waive the Minimum Condition (as defined in Exhibit A)) and to without the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion prior written consent of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderCompany). Merger Sub Subsidiary expressly reserves the right right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Merger Sub neither Parent nor Subsidiary shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder next sentence, change the expiration date of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend amend, alter, add or modify waive any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub if on any scheduled expiration date of the Offer, which shall initially be 20 Business Days after the commencement date of the Offer, all Offer Conditions have not been satisfied or waived, Subsidiary may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days, and Subsidiary may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (iiA) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the SEC staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , and (AB) in the event it would otherwise be entitled to terminate extend the Offer at any scheduled expiration thereof due for up to ten Business Days if there have been validly tendered and not withdrawn prior to the failure expiration of one or more the Offer such number of Shares that would constitute at least 75% but less than 90% of the issued and outstanding Shares as of the date of determination. Subject only to the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedA, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, howeveraccept for payment, and pay for all Shares validly tendered and not withdrawn that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer Subsidiary becomes obligated to accept for a period not payment pursuant to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (as supplemented or amended from time to time, the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Subsidiary agree that the Offer --------------- Documents shall comply as to form and content in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder thereunder, and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub Subsidiary with respect to written information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub Subsidiary and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees 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 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company, and Parent and Subsidiary shall consider such comments in good faith. Parent and Merger Sub Subsidiary agree to provide the Company and its counsel any comments Parent, Merger Sub Subsidiary or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger Sub be provided to Subsidiary on a timely basis the funds necessary sufficient to purchase accept for payment, and pay for, any shares of Common Stock and all Shares that Merger Sub Subsidiary becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(d) Subsidiary shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as may be required to be deducted and withheld with respect to perform the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or under any provision of its other obligations pursuant state, local or foreign tax law; PROVIDED, HOWEVER, that Subsidiary shall promptly pay any amounts deducted and withheld hereunder to this Agreementthe applicable governmental authority, shall promptly file all tax returns and reports required to be filed in respect of such deductions and withholding, and shall promptly provide to Company proof of such payment and a copy of all such tax returns and reports.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated and subject to the provisions of this AgreementAgreement and the conditions set forth on Annex A hereto, as promptly as practicable after the date hereof, but in no event later than the fifth ten business day from and including the date of days following the public announcement of the terms of this Agreement, Merger Sub shall, and Parent Logitech Subsidiary shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Offer. The obligation of Merger Sub to, and of Parent Logitech Subsidiary to cause Merger Sub to, commence the Offer and accept for payment, and pay for, payment any shares of Common Stock Shares tendered pursuant to in the Offer shall be subject only to the satisfaction of only those conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent on Annex A. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition 20th "business day" (as such term is defined in Exhibit A)Rule 14d- 1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and to 14d-2 under the terms and conditions of this AgreementExchange Act). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent and Logitech Subsidiary expressly reserve the right to purchase all or waive any portion of the Shares tendered pursuant condition to the Offer, but no such assignment shall relieve Parent Offer or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not, and Logitech Subsidiary shall not cause Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Cash Portion or reduce the Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Portion, (iii) waive or change the Minimum Condition (as defined in Annex A), (iv) modify in any manner adverse to the holders of Company Common Stock or add to the conditions to the obligation of Merger Sub to, or Logitech Subsidiary to cause Merger Sub to, accept for payment any Shares tendered in the Offer set forth in Exhibit Annex A, (ivv) except as provided in the remainder of this Section 1.1next two sentences, extend the Offer, Offer or (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, without the consent of the Company, but subject (x) extend the Offer for any period required by any rule, regulation, interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof; (y) from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived waived; or (iiz) extend the Offer for any reason on one or more occasions for an aggregate period required by any rule, regulation, interpretation or position of not more than 10 business days beyond the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it latest expiration date that would otherwise be entitled to terminate permitted under clause (x) or (y) of this sentence if on such expiration date there shall not have been tendered (and not properly withdrawn) at least 90% of the Offer at outstanding Shares on a Fully Diluted Basis. Logitech Subsidiary and Merger Sub agree that, if any scheduled expiration thereof due to the failure of one or more of the conditions to the Offer set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit on Annex A to be are not satisfied or waivedthen, it shall give the Company notice thereof and, at the request of the Company, if provided that such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier capable of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied or any such event has occurred; provided, however, that in no event shall Merger Sub be required to extend the Offer beyond July 15, 2001. Following expiration of the Offer, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, make available a "subsequent offering period" in accordance with Rule 14d-11 of the Exchange Act. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Logitech Subsidiary shall cause Merger Sub to, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. With respect to any such number of days (up to 20 calendar days) as Shares the Company may request. No such request Cash Portion shall be made net to the seller thereof in cash, subject to reduction only for any applicable federal back- up withholding or stock transfer taxes payable by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997such seller.
(b) On the date of commencement of the Offer, Parent shall file with the SEC a Registration Statement on Form F-4, which will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act to register the offer and sale of Registered Parent Shares represented by Parent ADSs pursuant to the Offer (as the same may be supplemented or amended, the "Form F-4"). On the date of commencement of the Offer, Logitech Subsidiary and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with any communications filed with the SEC under cover of Schedule TO prior to commencement of the Offer in accordance with Rule 14d-2(b) under the Exchange Act, and as such Schedule TO may be supplemented or amended, the "Schedule TO") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO, the Form F-4 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of ParentLogitech Subsidiary, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Logitech Subsidiary and Merger Sub further agrees to shall, upon becoming aware that such information shall have become false or misleading in any material respect, take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO and Form F-4 as so amended or supplemented to be filed with the SEC and for the other 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 applicable Federal federal securities laws. The Logitech Subsidiary and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company. Parent Logitech Subsidiary and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Logitech Subsidiary or Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Logitech Subsidiary and/or Merger Sub to such comments.
(c) . Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase not issue certificates or scrip representing fractional Parent ADSs pursuant to the Offer and to perform any Offer. Logitech Subsidiary will pay cash in lieu of its other obligations pursuant to this Agreementfractional Parent ADSs in accordance with the provision set forth in the last two sentences of Section 2.4(d) hereof.
Appears in 1 contract
The Offer. (a) Subject to Provided, that this Agreement shall not have been terminated in accordance with Article VIII and none of the provisions conditions in paragraphs (c) through (e) of this AgreementExhibit A is existing, as promptly as reasonably practicable but in no event later than the fifth business day from and including after the date of the public announcement of this Agreementhereof, and in any event within five (5) Business Days after such date, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all outstanding Shares at the Offer Price. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver by Merger Sub of the conditions set forth in Exhibit A hereto (any of which may be waived by the “Offer Conditions”) and the terms and conditions hereof. Merger Sub may, in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum any Offer Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the OfferOffer consistent with the terms of this Agreement, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) reduce the cash offer pricenumber of Shares subject to the Offer, (iv) waive or change the Minimum Condition (as defined in Exhibit A) or the condition set forth in clause (d) of Exhibit A, (v) add to the Offer Conditions or modify them in a manner adverse to the holders of Shares, (vi) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (vivii) amend modify any Offer Condition or modify any term of the Offer set forth in any this Agreement in a manner adverse to any the holders of Shares.
(b) The Offer shall expire at 12:00 midnight, New York City time, at the end of the Company's stockholders. The initial expiration date that is twenty (20) business days (for purposes of this Section 1.1(b), business days shall be September 15, 1997. Notwithstanding calculated in accordance with Section 14d-1(g)(3) under the foregoing, Merger Sub may, without Exchange Act) after the consent commencement of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, except as may otherwise be required by applicable Law (as defined in Section 4.4(a) hereof); provided, however, that if at the any scheduled expiration date of the Offer (including any of extension thereof), (i) the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Offer Conditions have not be satisfiedbeen satisfied or waived, then until such time as such conditions are the Offer Conditions have been satisfied or waived waived, Merger Sub shall extend the Offer for one or (as needed) more additional consecutive periods of ten (10) business days or (ii) the Outstanding Liabilities (as defined in Section 1.1(d) hereof) of the Company exceeds the then-applicable Liabilities Threshold (as defined in Section 1.1(d) hereof), then, at the election of Merger Sub (which election shall be made no later than 9:00 a.m. New York City time on such scheduled expiration date of the Offer), (x) the Offer Price shall be adjusted, on such scheduled expiration date of the Offer, pursuant to Section 1.1(d) hereof, (y) Merger Sub shall, on such scheduled expiration date of the Offer, provide notice of such adjustment to the Company’s stockholders pursuant to and in compliance with Rule 14e-1(b) under the Exchange Act and any other applicable rules or regulations of the SEC or other applicable Law and (z) Merger Sub shall extend the Offer for an additional period of ten (10) business days, but, notwithstanding clauses (i) and (ii) of this paragraph, in no event shall the Offer remain open after 120 days from commencement thereof (the “Outside Date”); provided, further, that Merger Sub shall also extend the Offer for any additional period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval rules of the Nasdaq Stock Market applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, howeverfurther, that notwithstanding the -------- ------- foregoing Parent Merger Sub may, in its sole discretion, extend provide a subsequent offering period (a “Subsequent Offering Period”) after the expiration of the Offer, in accordance with Rule 14d-11 under the Exchange Act.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the expiration date thereof (as the same may be extended or required to be extended) or (in the case of any Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof.
(d) In the event of an adjustment pursuant to Section 1.1(b)(ii)(x) on a scheduled expiration date of the Offer (each, an “Adjustment Date”), (i) the Offer Price for a period not purposes of this Agreement shall thereafter be equal to exceed ten business days and $1.90 net to the selling Company stockholders in no event ending after December 31, 1997, if Parent reasonably believes that as a result cash less an amount equal to the quotient of such extension 90% or more (A) the excess of the Shares will be tendered in Outstanding Liabilities on the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% Adjustment Date over $85,000,000 divided by (B) the sum of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days issued and outstanding Shares (up to 20 calendar daysincluding for this purpose any vested or unvested restricted stock) as on the Company may request. No such request shall be made by Adjustment Date plus the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date number of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein Shares issuable pursuant to which Company derivatives (whether or not vested) that would be in-the-money based on the new Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as Price calculated pursuant to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended this clause (the "Exchange Act"i), and (ii) the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given Liabilities Threshold for purposes of this Agreement shall be thereafter be equal to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Liabilities Threshold as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis Adjustment Date plus the funds necessary to purchase any shares amount of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any Excess Liabilities as of its other obligations pursuant to such Adjustment Date plus $5,000,000. For purposes of this Agreement.:
Appears in 1 contract
Sources: Merger Agreement (Ashworth Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and no event shall have occurred which would result in a failure to satisfy any of the provisions conditions set forth in Annex A hereto (the "Offer Conditions") within a reasonable time (but not more than ten business days) after the public announcement of the execution of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and the Parent shall cause Merger Sub the Purchaser to, commence the Offer. The obligation Offer shall be made by means of Merger Sub to, an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and the conditions set forth in Annex A hereto. The obligations of the Purchaser and the Parent to cause Merger Sub to, commence consummate the Offer and to accept for payment, payment and pay for, any shares of Common Stock pur chase the Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent Offer Conditions. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion 20th business day following commencement of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub The Purchaser expressly reserves the right to modify the terms of the Offer, except thatPROVIDED, HOWEVER, that without the consent of the Company, Merger Sub the Purchaser shall not, and the Parent shall not permit the Purchaser to (iI) reduce the number of shares of Company Common Stock subject to be purchased in the Offer, (iiII) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iiiIII) materially modify or add to the conditions set forth Offer Conditions, including any change to the Minimum Condition (as defined in Exhibit Annex A), (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (vIV) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Offer, (iV) extend the Offerexcept as provided below, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not or as may be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC"), change the expiration date of the Offer or (VI) or amend any other condition of the staff thereof applicable --- Offer in any material respect in a manner adverse to the holders of the Shares. Notwithstanding anything in this Agreement to the contrary, the Purchaser shall have the right, without the prior consent of the Company, to extend the offer beyond its scheduled expiration date in the following events: (X) if at any expiration date, any of the conditions to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be shall not have been satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if until such conditions are reasonably likely satisfied or waived; (Y) for any period required by applicable law; and (Z) if all of the conditions to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, are satisfied or waived waived, but the number of Shares validly tendered and (2) not withdrawn is less than the amount necessary to effect a parent-subsidiary merger pursuant to Section 252 of the Delaware General Corporation, for a period not to exceed twenty days following the initial expiration date chosen of the Offer. The Offer Conditions are for the sole benefit of the Parent and the Purchaser and may be asserted by the CompanyParent and the Purchaser regardless of the circumstances giving rise to any such Offer Conditions and, which shall not subject to the preceding sentence, may be later than (x) December 31waived by the Purchaser in whole or in part. Subject only to the Offer Conditions, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this AgreementPurchaser shall, and that nothing in this Section 1.1 the Parent shall modify Parent's cause the Purchaser to, pay for all of the Shares validly tendered and Merger Sub's right not withdrawn pursuant to terminate this Agreement in the Offer (including any subsequent offering period) as soon as legally permissible. In the event that (i) the Company is Minimum Condition (as defined in breach hereof Annex A) has not been satisfied or the conditions specified (ii) any condition set forth in paragraphs paragraph (a), (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by or waived at the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shallOffer, at the reasonable request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten in increments of five business days and in no event ending after December 31each until the earliest to occur of (1) the satisfaction or waiver of such condition, 1997, if (2) Parent reasonably believes determining that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior condition to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number is not capable of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated being satisfied on or prior to October 6the thirtieth day following the initial expiration date of the Offer, 1997(3) the termination of this Agreement in accordance with its terms and (4) the thirtieth day following the initial expiration date of the Offer.
(b) On the date of commencement Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and no event shall have occurred which would result in a failure to satisfy any of the OfferOffer Conditions, the Parent and Merger Sub shall the Purchaser will file with the SEC SEC, as soon as practicable after the date hereof, a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement Sched ule TO (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any all supplements or amendments thereto, and including all exhibits, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub Purchaser and the Company agrees shall promptly to correct any information provided by it for use use, or incorporated by reference, in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable Federal securities laws. The Parent and the Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company. The Parent and Merger Sub agree to provide the Purchaser will furnish the Company and its counsel in writing with any comments that the Parent, Merger Sub the Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of the Parent or the Purchaser to such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (WMF Group LTD)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated and subject to the provisions of this Agreementterms hereof, as promptly as practicable practicable, but in no event later than the fifth five (5) business day from and including the date of days after the public announcement of this Agreementthe execution hereof by the parties, Merger Sub shall, Acquisition shall (and Parent shall cause Merger Sub Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer"Exchange Act")), the Offer for any and all of the Shares, at the Offer Price. The obligation of Merger Sub to, Acquisition to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Merger Sub to, commence the Offer and Acquisition to accept for payment, payment and to pay for, for any shares of Common Stock tendered pursuant to the Offer Shares tendered) shall be subject only to (i) the condition that at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested Company Stock Options (as defined in Section 3.2(a)) and unvested Company Stock Options that vest prior to the Final Date, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex A. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, no change may be made that (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A, (v) amends the conditions set forth in Exhibit Annex A to broaden the scope of such conditions, (any vi) extends the Offer except as provided in Section 1.1(b), or (vii) amends the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of which Parent and Acquisition and may be waived by Merger Sub Parent and Acquisition, in its whole or in part at any time and from time to time, in their sole discretion, provided thatother than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent and 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 that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer. 8
(b) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) business days after the date the Offer is commenced; provided, however, that without the consent of the Company's Board of Directors (the "Company Board"), Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub Acquisition may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject from time to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; or (Aiii) in extend the event it Offer for any reason on one or more occasions for an aggregate period of not more than twenty (20) business days beyond the latest expiration date that would otherwise be entitled to terminate permitted under clause (i) or (ii) of this sentence if on such expiration date there shall not have been tendered at least 90% of the Offer at outstanding Shares. Parent and Acquisition agree that, if any scheduled expiration thereof due to the failure of one or more of the conditions to the Offer set forth on Annex A are not satisfied and none of the events set forth in the first sentence of the introductory paragraph or paragraphs (a) or through (gf) of Exhibit Annex A that would permit Acquisition not to be satisfied or waived, it shall give the Company notice thereof and, accept tendered Shares for payment has occurred and is continuing at the request time of any scheduled expiration date of the CompanyOffer, if then, provided, that such conditions are reasonably likely capable of being satisfied and no such event has occurred on or prior to be satisfied during the requested extension period(and is continuing on) September 15, 1999, Acquisition shall extend the Offer until the earlier of (1) such from time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- time unless any such condition is not no longer reasonably capable of being satisfied by the date so chosen by the Companyor any such event has occurred; provided, the Company may request and Merger Sub however, that in no event shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise Acquisition be entitled required to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration datebeyond September 15, 1999. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, Acquisition shall (and Parent shall cause Merger Sub Acquisition to) accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately Offer, as promptly as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Sub Acquisition shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall contain as an offer exhibit or incorporate by reference the Offer to purchase Purchase (or portions thereof) and a forms of the related letter of transmittal and summary advertisement (such advertisement. Parent and Acquisition agree that they shall cause the Schedule 14D-1 and the documents and exhibits included therein pursuant to which 14D-1, the Offer will be made, to Purchase and all amendments or supplements thereto (which together with any supplements or amendments thereto, constitute the "Offer Documents"). The Offer --------------- Documents shall ) to comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and other Applicable Laws. Parent and Acquisition further agree that the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub Acquisition with respect to information supplied by the Company or any of its stockholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub Acquisition further agrees 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 corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their the filing thereof with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Merger Sub Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Intel Corp)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable practicable, but in no any event later than within five Business Days (as defined in Rule 14d-1(c)(6) promulgated under the fifth business day from and including Securities Exchange Act of 1934, as amended (the date "EXCHANGE ACT")) of the initial public announcement of this Agreementthe Offer, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), to purchase all of the outstanding shares of Common Stock, $.01 par value per share (the "SHARES"), of the Company at a price of $36.00 per Share, net to the seller in cash (such price, the "OFFER PRICE"), and Purchaser shall not withdraw the Offer and, subject to the conditions set forth in Exhibit A, shall purchase all Shares duly tendered and not withdrawn. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub Purchaser in its sole discretion) and to the terms and conditions of this Agreement; provided, provided thathowever, that Purchaser shall not, without the consent of the Company's consent, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Common Stock subject Shares to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any other term of the Offer in any a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer on one or more occasions for up to 10 Business Days for each such extension beyond the scheduled expiration date (the initial scheduled expiration date being 20 Business Days following commencement of the Offer), if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase accept for payment, and pay for, shares of Company Common Stock shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2iii) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected as may be requested by provided in the Company not to exceed ten business days from such scheduled expiration datelast sentence of Section 7.01(a). Subject to the terms and conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as practicable but reasonably practicable, and in any event no event later than the fifth business day from and including ten (10) Business Days of the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) an offer to purchase all outstanding shares of Company Common Stock at the Offer Price. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver by Merger Sub of the conditions set forth in Exhibit Annex A hereto (any of which may be waived by the “Offer Conditions”). Merger Sub expressly reserves the right, in its sole discretion, provided to waive any Offer Condition in whole or in part, at any time or from time to time, or to modify the terms or conditions of the Offer, except that, without the written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) reduce the number of shares of Company Common Stock subject to the Offer, (iv) waive or change the Minimum Condition or the Termination Condition (each as defined in Annex A), (v) add to the Offer Conditions, (vi) terminate, or extend or otherwise amend or modify the expiration date of the Offer except as required or permitted by Section 1.1(b) or (vii) amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement in a manner (other than in an immaterial manner) adverse to the holders of Company Common Stock. The Company agrees that no Company Common Stock held by the Company, Merger Sub or any of their respective Subsidiaries will be tendered in the Offer; provided, that the Company shall be permitted to tender Company Common Stock held or beneficially owned by the Company pursuant to or in respect of a Company Plan or a trust that relates to obligations pursuant to a Company Plan.
(b) The Offer shall expire on the date that is twenty (20) Business Days after the commencement of the Offer (determined using Rule 14d-1(g)(3) of the Exchange Act); provided, however, that, subject to the provisions of Article VIII, (i) if at any scheduled expiration date of the Offer, if any Offer Condition shall not have been satisfied or waived (to the extent permitted under applicable Law), Merger Sub may, in its sole discretion, without the consent of the Company, extend the Offer for one or more consecutive increments of not more than five (5) Business Days each (the length of such period to be determined by Parent or Merger Sub), until the earlier of (A) the termination of this Agreement in accordance with its terms and (B) the date six (6) months from the date hereof (the “Walk-Away Date”) and (ii) if at any scheduled expiration date of the Offer, if any Offer Condition shall not have been satisfied or waived (to the extent permitted under applicable Law), 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 (5) Business Days each (the length of such period to be determined by Parent or Merger Sub), until the earlier of (A) the termination of this Agreement in accordance with its terms and (B) the Walk-Away Date; provided, however, that in no event shall Merger Sub be required to extend the Offer (x) beyond the Walk-Away Date or (y) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article VIII. In addition, Merger Sub may (and shall where fewer than 90% of the total shares of Company Common Stock then outstanding have been accepted for payment in the Offer or are to be acquired pursuant to the exercise of the Top-Up Option immediately following the Acceptance Time) provide a subsequent offering period (a “Subsequent Offering Period”) after the expiration of the Offer, in accordance with Rule 14d-11 under the Exchange Act; provided, however, that in no event shall Merger Sub be required to provide a Subsequent Offering Period (x) beyond the Walk-Away Date or (y) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article VIII. Without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent have the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC"”) or the its staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: .
(Ac) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction, or waiver by Merger Sub, of all of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, pay (i) accept for payment all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of date thereof (as the Offer; providedsame may be extended or required to be extended, however, that notwithstanding the -------- ------- foregoing Parent may“Expiration Date”) and pay for (subject to any applicable Tax withholding pursuant to Section 3.2(b)(iii)) such shares as soon as practicable (and, in its sole discretionany event, extend no more than two (2) Business Days ) after the expiration date Expiration Date or (ii) in the case of any shares of Company Common Stock tendered during any Subsequent Offering Period, accept for payment and pay for all such shares of Company Common Stock validly tendered and not validly withdrawn as soon as practicable (and, in any event, no more than two (2) Business Days following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result valid tender of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply may not be terminated prior to its expiration date (as to form such expiration date may be extended and re-extended in all material respects accordance with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"Section 1.1(b)), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, unless this Agreement is validly terminated in accordance with Section 8.1. Nothing contained in this Section 1.1(c) shall not contain affect any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary termination rights set forth in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsSection 8.1.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article VIII, Purchaser shall cause Sub to (i) commence (within the provisions meaning of this Agreement, Rule 14d-2 of the Exchange Act) the Offer as promptly as practicable after the date hereof (but in no event not later than the fifth business day from January 21, 2011) and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (ii) consummate the Offer, subject to the terms and conditions hereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, purchase and pay for, any shares of Common Stock for Shares tendered pursuant to the Offer shall be subject only to the absence of, or waiver of the presence of (subject to the limitations in the proviso of Section 2.1(b)) the conditions set forth in Exhibit Annex A (the “Tender Offer Conditions;” the absence of, or waiver of the presence of, the Tender Offer Conditions is referred to hereinafter as “satisfaction or waiver of” the Tender Offer Conditions).
(b) Purchaser, on behalf of Sub, expressly reserves the right from time to time, subject to Section 2.1(c), to waive any of which may be waived by Merger Sub the Tender Offer Conditions or to increase the Offer Price or to make any other changes in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger the Offer; provided that (i) no Person (including Purchaser, Sub and the Company) may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent waive the right to purchase all or any portion condition in clause “(i)” of Annex A (the “Minimum Condition”) and (ii) without the prior written consent of the Shares tendered pursuant Company acting through the Special Committee, no change in the Offer may be made which decreases the Offer Price, changes the form of consideration to be paid in the Offer, but no such assignment reduces the maximum number of Public Shares to be purchased in the Offer, imposes conditions to the Offer in addition to the Tender Offer Conditions or which otherwise modifies the Tender Offer Conditions, reduces the period of time during which the Offer shall relieve Parent remain open, extends the Offer (except for any extension required or Merger Sub permitted pursuant to Section 2.1(c)) or amends any other term of its obligations hereunderthe Offer (A) in a manner adverse to the holders of Public Shares or (B) which would delay consummation of the Offer as reasonably determined by the Board acting through the Special Committee. Merger Sub expressly reserves the right Subject to modify the terms of the Offer, except that, without Offer and this Agreement and the consent of the Company, Merger Sub shall not satisfaction or waiver (i) reduce the number of shares of Common Stock subject to the Offerlimitations in the proviso in this Section 2.1(b)) of all of the Tender Offer Conditions as of the Expiration Date, (ii) reduce Sub shall, and Purchaser shall cause Sub to, as soon as possible after such Expiration Date, accept for payment, purchase and pay the price per share of Common Stock to be paid Offer Price in cash for each Public Share validly tendered and not withdrawn pursuant to the Offer (except the date of acceptance for payment, the “Acceptance Date” and the time for acceptance for payment, the “Acceptance Time”). Purchaser shall provide, or cause to be provided, to Sub on a timely basis funds sufficient to purchase and pay for any and all Public Shares that Sub becomes obligated to accept pursuant to Section 3.4the Offer. For the avoidance of doubt, Sub shall pay the Offer Price for any Public Shares accepted for payment in the Offer as promptly as practicable.
(c) The Offer shall remain open until 5:00 p.m. Eastern Time on the date (the “Expiration Date”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act), (iii) modify or add to unless Sub shall have extended the conditions set forth period of time for which the Offer is open pursuant to, and in Exhibit Aaccordance with, (iv) except as provided in the remainder of this Section 1.12.1(c), extend in which event the term “Expiration Date” shall mean the latest time and date the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholdersas so extended, may expire. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it If at any date that would otherwise be entitled an Expiration Date: (i) any of the Tender Offer Conditions is not satisfied or waived (subject to terminate the limitations in the proviso in Section 2.1(b) and subject to Section 2.1(d)) by Sub (including by Purchaser on behalf of Sub), Sub shall extend the Offer at any scheduled expiration thereof due from time to time for periods of not more than ten (10) Business Days until the date on which all of the Tender Offer Conditions are satisfied or waived (subject to the failure of one or more limitations in the proviso in Section 2.1(b) and subject to Section 2.1(d)); (ii) all of the conditions set forth Tender Offer Conditions have been satisfied or waived (subject to the limitations in the first sentence of proviso in Section 2.1(b)) and the introductory paragraph or paragraphs (a) or (g) of Exhibit A Marketing Period has not ended on the last Business Day prior to be satisfied or waivedsuch Expiration Date, it Sub shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2A) the date chosen by first (1st) Business Day after the Company, which shall not be later than (x) December 31, 1997 or (y) Lender has waived the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement condition in the event that Debt Commitment Letter relating to the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); Marketing Period and (B) in the event that Merger Sub would otherwise be entitled to terminate first (1st) Business Day after the Offer at any scheduled expiration date thereof due solely to the failure final day of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the OfferMarketing Period; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar daysiii) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The the Lender, five (5) Business Days have not lapsed since the Company has issued a press release or other public announcement disclosing its results of operations for the fiscal quarter and its counsel year ending December 31, 2010, which press release or announcement shall be given contain at a reasonable opportunity to review minimum all material GAAP financial measures consistent with the Company’s prior practices (the “Earnings Release”), Sub shall extend the Offer Documents and all amendments and supplements thereto prior until the fifth (5th) Business Day after the day the Company issued the Earnings Release; provided that the Expiration Date shall not be extended under clauses “(i)”, “(ii)” or “(iii)” above to their filing with the SEC or dissemination to stockholders of a date later than May 9, 2011 without the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments’s written consent.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject Upon the terms and subject to the provisions conditions of this AgreementAgreement (including Article VII), as promptly as reasonably practicable following the date hereof, but in any event no event later than the fifth business day from and including tenth Business Day after the date initial public announcement of the public announcement execution of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A Annex I (any of which as they may be waived by Merger Sub amended in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of accordance with this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned , the “Offer Conditions”).
(b) To the extent permitted by Law, Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. and Merger Sub expressly reserves reserve the right right, at any time, to waive, in whole or in part, any Offer Condition (other than the Minimum Condition), to increase the Offer Price or to modify the terms of the OfferOffer in a manner consistent with the terms of this Agreement; provided, except however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the maximum number of shares of Common Stock subject sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, (other than by increasing v) modify or amend any existing Offer Conditions in a manner adverse to the cash offer price) or holders of the Common Stock, (vi) amend except as otherwise required or expressly permitted by Section 1.1(d), extend or otherwise change the Expiration Time, (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or, (viii) otherwise amend, modify any term of or supplement the Offer in any manner adverse to the holders of Common Stock or in any manner that materially delays or unreasonably interferes with, hinders or impairs the consummation of the Company's stockholdersOffer. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(c) The Offer shall initially expire at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time) on the date that is twenty (20) Business Days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (such initial expiration date shall be September 15and time of the Offer, 1997. Notwithstanding the foregoing“Initial Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 1.1(d), 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”).
(d) Subject to Article VII, Merger Sub mayshall, without and Parent shall cause Merger Sub to, extend the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Offer on one or more occasions, (i) extend for the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof or the Nasdaq Global Select Market (the “Nasdaq”) applicable --- to the Offer and (ii) 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), in consecutive increments of at least five Business Days each (with each such period to end at midnight (New York City time) (i.e., one minute after 11:59 p.m. New York City time), on the last Business Day of such period), or such other duration as may be agreed to by Parent and the Company, in order to obtain any material regulatory approval applicable to permit the Offer. Merger Sub agrees that: satisfaction of such Offer Condition(s); provided, however, that (A) in either case, Merger Sub shall not be required to extend the event it would Offer to a date later than the Outside Date, (B) any such extension shall not be deemed to impair, limit, or otherwise be entitled restrict in any manner the rights of the parties hereto to terminate this Agreement pursuant to the terms of Article VII, and (C) with respect to clause (ii) above, if, at any such scheduled Expiration Time, the only Offer Condition that has not been so satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than one such additional five Business Day increment (and shall not be required to extend the Offer at any scheduled expiration thereof due to subsequent Expiration Time at which the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to Minimum Condition is not satisfied), but shall be satisfied or waived, it shall give the Company notice thereof andentitled, at the request of the Companyits sole discretion, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until for more than one such additional five Business Day increment.
(e) On the earlier of (1) such time as such condition is, or terms and subject to the conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, (i) at or as promptly as practicable following the Expiration Time, Merger Sub shall, and that nothing in this Section 1.1 Parent shall modify Parent's and cause Merger Sub's right to terminate this Agreement in Sub to, irrevocably accept for payment (the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) time of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companyacceptance for payment, the Company may request “Offer Acceptance Time”) all shares of Common Stock validly tendered and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled not properly withdrawn pursuant to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, (ii) 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) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer Offer. Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(f) The Offer Price payable in respect of each share of Common Stock shall be paid on the expiration terms and subject to the conditions of this Agreement. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer.
(g) Unless this Agreement is terminated pursuant to Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Expiration Time without the prior written consent of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, Company in its sole discretion. In the event this Agreement is terminated pursuant to Article VII, extend Merger Sub shall promptly (and in any event within two (2) Business Days) following such termination irrevocably and unconditionally terminate the expiration Offer and shall not acquire any shares of Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to promptly return, all tendered shares of Common Stock to the tendering stockholders in accordance with applicable Law.
(h) 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 Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Stock occurring on or after the date of the Offer for a period not to exceed ten business days this Agreement and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6the Offer Acceptance Time, 1997and such adjustment to the Offer Price shall provide to the holders of shares of Common Stock the same economic effect as contemplated by this Agreement prior to such action.
(bi) On the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement other appropriate ancillary offer documents (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated to the Company's stockholders, holders of the Common Stock as and to the extent required by United States federal securities Laws. The Company shall not contain any untrue statement of a material fact promptly furnish or omit otherwise make available to state any material fact Parent or Parent’s legal counsel upon request all information concerning the Company that is required by the Exchange Act or other applicable Law to be stated therein or necessary set forth in order to make the statements thereinOffer Documents, in light of and all other information concerning the circumstances under which they were made, not misleading, except Company that no representation is made may be reasonably requested by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it or on its behalf for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersholders of the Common Stock, in each case as and to the extent required by applicable Federal securities lawsLaw. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given a reasonable opportunity promptly provide the Company with copies of all written correspondence and summaries of all material oral communications between them and their respective Representatives, on the one hand, and the SEC, on the other hand. Unless there has been an Adverse Recommendation Change, prior to review the filing of the Offer Documents and all amendments and supplements any amendment or supplement thereto prior to their filing with the SEC or dissemination thereof to stockholders the holders of the Company. Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub agree to shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or amendment or supplement or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. Unless the Offer has been terminated in accordance with the terms of this Agreement, in the event that Parent or Merger Sub receives any comments Parent, Merger Sub or their counsel 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.
comments and (cii) Parent shall contribute to Merger Sub on a timely basis the funds take all other actions necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to resolve the Offer and to perform any of its other obligations pursuant to this Agreementissues raised therein.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a public announcement of the execution of this Agreement and (ii) Merger Sub shall, as promptly soon as practicable practicable, but in no event later than the fifth business day from and including five Business Days after the date of such announcement, commence (within the public announcement meaning of Rule 14d-2(a) of the Exchange Act) a tender offer (the "OFFER") to purchase all of the outstanding shares of Company Common Stock at a price of $10.00 per share, net to the seller in cash without interest (the "PRICE PER SHARE"), subject to reduction only for any applicable withholding taxes. The Offer shall be made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, purchase and pay for, any for shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to 75% of the Fully Diluted Shares (as defined below) of Company Common Stock on the date such shares are purchased pursuant to the Offer (subject to reduction as described below, the "MINIMUM SHARES") being validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction of the other conditions set forth in Exhibit ANNEX A (hereto, any of which conditions may be waived by Merger Sub in its sole discretion; provided, provided thathowever, that Merger Sub shall not reduce the Minimum Shares below a majority of the Fully Diluted Shares of Company Common Stock without the prior written consent of the Company. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Merger Sub pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce decrease the number of shares of Common Stock subject to Price Per Share payable in the Offer, (ii) reduce decrease the price per share number of shares of Company Common Stock to be paid sought pursuant to the Offer (except pursuant to Section 3.4), (iii) modify below a majority of the Fully Diluted Shares of Company Common Stock or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (other than by increasing including the cash offer priceconditions set forth in ANNEX A hereto) or impose additional conditions to the Offer, (viiv) amend except as provided below, change the expiration date of the Offer, or modify (v) otherwise amend, add or waive any term or condition of the Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that if on any scheduled expiration date of the Company's stockholders. The initial expiration Offer, which shall initially be 20 Business Days after the commencement date shall be September 15of the Offer, 1997. Notwithstanding all conditions to the foregoingOffer have not been satisfied or waived, Merger Sub may, from time to time, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days without the Company's prior written consent, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); provided further that if on any scheduled expiration date of the Offer all conditions to the Offer (other than the Minimum Shares) have been satisfied or waived, and the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent at least a majority of the Fully Diluted Shares of Company Common Stock, and Merger Sub does not elect to reduce the Minimum Shares and consummate the Offer, then Merger Sub shall, at the Company's request, on up to three occasions, extend the expiration date of the Offer for up to 10 additional Business Days (but in no event shall such extensions exceed, in the aggregate, 30 Business Days, and in no event shall Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date); and provided further that Merger Sub may, (x) without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof SEC applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: and (Ay) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of if (1) such time as such condition is, or the conditions are, to the Offer shall have been satisfied or waived and (2) the date chosen by number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the Companyissued and outstanding shares of Company Common Stock; provided, which however, that in no event shall not be later than (x) December 31, 1997 or the extensions permitted under the foregoing clause (y) exceed, in the date on which aggregate, 10 Business Days. Assuming the Company reasonably believes prior satisfaction or waiver of all such the conditions will be satisfied (it being understood that to the Company shall not be entitled to make such request if it is then Offer set forth in breach of this AgreementANNEX A, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, purchase and pay for for, in accordance with the terms of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as reasonably practicable after the expiration of the Offer; . Parent shall provide, or cause to be provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub Sub, on a timely basis basis, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject to the provisions conditions of this AgreementAgreement 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 (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than the fifth ten business day from and including 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. The obligation of Merger Sub to, and of Parent to 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 the Offer shall be are subject only to the conditions set forth in Exhibit A A. The initial expiration date of the Offer shall be the 20th 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 which may the Offer as so extended, shall also be waived by defined herein as an "Expiration Date"). Parent and Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent expressly reserve the right to purchase all or waive any portion of the Shares tendered pursuant condition to the Offer, but no such assignment shall relieve Parent Offer or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to 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 price per share of Common Stock Offer Price to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit AAor 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 the remainder of this Section 1.11.01(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub maymay (but shall not be obligated to), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Company and in its sole and absolute discretion, (iA) from time to time extend the OfferOffer if, if at the scheduled expiration date of the Offer Expiration Date, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfied, have been satisfied or waived until such time as such conditions are satisfied or waived or to the extent permitted by this Agreement; (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval SEC applicable to the Offer. Merger Sub agrees that: ; or (AC) in the event it would otherwise be entitled to terminate 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 any scheduled expiration thereof due least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the failure of one or more of conditions to the conditions Offer that are set forth in this Agreement, promptly after the first sentence of the introductory paragraph Expiration Date, either Parent or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedMerger Sub shall accept for payment and purchase, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) promptly as practicable after the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Parent or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of (as the case may be) first accepts shares for payment pursuant to the Offer in accordance with (the terms of this Section 1.1(a"Acceptance Date"); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub becomes obligated are permitted to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer accept and pay for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC 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 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respectrespect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent and Merger Sub further agrees to 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 federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree shall provide to provide the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall contribute 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as practicable after the date hereof but in no event later than the fifth business day from and including twenty (20) Business Days following the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub toto commence (within the meaning of Rule 14d‑2 under the Securities Exchange Act of 1934, commence as amended (including the Offerrules and regulations promulgated thereunder, the “Exchange Act”)) the Offer to purchase all Shares at the Offer Price. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares tendered and not validly withdrawn pursuant to the Offer shall be subject only to (i) the satisfaction of the Minimum Condition (as defined in Exhibit A hereto) and (ii) the satisfaction or waiver by Parent or Merger Sub of each of the other conditions set forth in Exhibit A hereto (any together with the Minimum Condition, the “Offer Conditions”). Each of which may be waived by Parent and Merger Sub expressly reserves the right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition or (C) modify any of the other terms or conditions of the Offer that are not inconsistent with the terms of this Agreement, except that, unless otherwise provided thatby this Agreement, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) Parent and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i1) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v2) change the form of consideration payable in the Offer (other than by increasing adding consideration), (3) reduce the cash offer pricenumber of Shares subject to the Offer, (4) impose additional conditions to the Offer, (5) waive or change the Minimum Condition, (vi6) add to the Offer Conditions, (7) terminate the Offer or accelerate, extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, (8) amend or modify any Offer Condition or any term of the Offer in any a manner that is, or would reasonably be expected to be, adverse to any the holders of Shares or that would reasonably be expected to, individually or in the aggregate, prevent or materially delay the consummation of the Company's stockholders. Offer or prevent, materially delay or materially impede the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated by this Agreement or (9) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.
(b) The initial expiration Offer shall initially be scheduled to expire at one minute after 11:59 p.m. (New York City time) on the date shall be September 15that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer (the “Initial Expiration Date”) or, 1997. in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been so extended, the “Expiration Date”).
(c) Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but unless this Agreement has been terminated in accordance with Article VIII (and subject to the Company's each party’s right to terminate this Agreement pursuant to Section 8.1(b)(iiin accordance with Article VIII), the Offer shall be extended from time to time as follows:
(i) extend the OfferIf, if at the on or prior to any then scheduled expiration date of Expiration Date, the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Conditions shall not be satisfied, until such time as such conditions are have been satisfied or waived by Parent or Merger Sub if permitted hereunder and to the extent permitted by applicable Law, then Merger Sub shall (iiand Parent shall cause Merger Sub to) extend the Offer for any successive periods of up to ten (10) Business Days each until the Offer Conditions are satisfied or waived; provided, however, that Merger Sub shall not be required to extend the Offer beyond the date that is one hundred twenty days (120) days following the date of this Agreement (the “Outside Date”); provided, further, that Merger Sub shall not extend the Offer beyond the Outside Date without the prior written consent of the Company.
(ii) Merger Sub shall extend the Offer for the minimum period or periods required by any rule, regulationapplicable Law, interpretation or position of the Securities and Exchange Commission (or its staff) (the "“SEC"”) or the staff thereof applicable --- to Nasdaq Global Market (or its staff) (“Nasdaq”).
(d) Merger Sub shall not terminate or withdraw the Offer or in order prior to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to Expiration Date without the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request prior written consent of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement except in the event that this Agreement is terminated in accordance with Article VIII. In the Company event that this Agreement is terminated in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companyaccordance with Article VIII, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination), terminate the Offer. 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 depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof.
(e) Subject to the terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of Expiration Date or as soon as practicable following the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997valid tender thereof.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable practicable, but in no event later sooner than the fifth business day fifteen (15) Business Days from and including the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer in accordance with the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and or accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent A. Upon expiration of the CompanyOffer in accordance with the terms of this Agreement and satisfaction or waiver, Merger Sub shall not waive to the Minimum Condition (as defined extent waivable, of the conditions set forth in Exhibit A)) , Parent shall cause Sub to accept and to pay for the tendered shares of Company Common Stock in accordance with the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent later of the 45th Business Day following the commencement of the Offer (determined using Rule 14d-2 of the SEC) or Merger Sub the day of its obligations hereunderthe MBO Pre-Closing. Merger Sub expressly 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 not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit AA 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 the remainder of this Section 1.11.01(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoingforegoing but subject to Section 7.01, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer for one or more periods of time that Sub reasonably believes are necessary to cause the conditions of the Offer set forth in Exhibit A hereto to be satisfied if, if at the scheduled expiration date of the Offer Offer, any of the conditions to Merger Sub's ’s obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer, (C) extend the Offer for up to four (4) Business Days following Parent’s receipt of written notice pursuant to Section 4.02(b), (D) extend the Offer for a single period of time not exceeding five (5) Business Days beyond the latest expiration date of the Offer that would otherwise be permitted under subclauses (A), (B) or (C) of this Section 1.01, if on such date more than 80% but less than 90% of the shares of Company Common Stock (determined on a fully diluted basis) has been validly tendered and not withdrawn pursuant to the Offer, or (E) revise the terms of the Offer to be consistent with any amendment to the MBO Agreement or the terms of any other agreement for the sale of the MBO Business entered into pursuant to Section 4.02(e) hereof. Parent and Sub agree that if all of the conditions to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at are not satisfied on any scheduled expiration thereof due to date of the failure of Offer, then, if requested by the Company, Sub shall, and Parent shall cause Sub to, extend the Offer for one or more periods of time that Company reasonably believes are necessary to cause the conditions of the conditions Offer set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A hereto to be satisfied, from time to time, until such conditions are satisfied or waived, it provided that Sub shall give not be required to extend the Offer beyond the Outside Date (as defined in Section 7.01(b)(i). Parent and Sub shall not terminate the Offer prior to any scheduled expiration date (as the same may be extended or required to be extended) without the prior written consent of the Company notice thereof andexcept in the event this Agreement is terminated pursuant to Section 7.01. If the Minimum Tender Condition has been satisfied, at Sub may, without the request consent of the Company, if such conditions are reasonably likely elect to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of provide a subsequent offering period for the Offer in accordance with Rule 14d-11 of the terms Securities Exchange Act of this Section 1.1(a); and 1934, as amended (Bthe “Exchange Act”) following its acceptance for payment of shares of Company Common Stock in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to 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 of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable, but no later than two (2) Business Days after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents")”) and will thereafter promptly disseminate (except in the case of amendments that are not material) such Offer Documents to the stockholders of the Company. The Parent and Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder (including Rule 13e-3) and the Offer Documents Documents, on the date first published, sent or given to the Company's ’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company in writing or any of its stockholders (other than Parent and its Affiliates) specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 ’s stockholders, in each case as and to the extent required by applicable Federal securities lawsApplicable Law. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents Documents, and all amendments Parent and supplements thereto Sub shall consider such comments in good faith, prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff (and the proposed responses thereto) with respect to the Offer Documents promptly after the receipt of such comments. If the Offer is terminated or withdrawn by Sub, Parent and Sub shall use their respective best efforts to cause all tendered Company Common Stock to be promptly returned to the registered holders of such Company Common Stock.
(c) Parent or any of its Affiliates shall contribute provide or cause to Merger be provided to 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. In addition, Parent will contribute, or cause to be contributed, all shares of Company Common Stock owned by Parent or its Affiliates to Sub prior to the Acceptance Date.
(d) Upon satisfaction or waiver, to the extent waivable, of the conditions to the Offer described in Exhibit A, other than condition (g), Parent and Sub shall notify the company, C-W Co. and ▇▇▇ ▇▇▇▇▇▇▇ that: (i) the Conditions to perform any the Offer described in Exhibit A hereto have been satisfied or waived (to the extent waivable), and (ii) Parent and Sub are prepared to proceed with the closing of its other obligations pursuant the Offer. Upon delivery of the notice, the parties to the MBO Agreement shall deliver to Parent and Sub certifications signed by each of the parties’ chief executive officers certifying that all the conditions to the closing of the sale of the MBO Business have been satisfied or waived, to the extent waivable (the “MBO Certifications”) and C-W Co. and ▇▇▇▇▇▇▇ shall deliver to Parent and Sub a copy of a firm commitment from a bank reasonably acceptable to Parent and Sub or evidence of an escrow deposit in either case evidencing that C-W Co. and ▇▇▇▇▇▇▇ will have sufficient funds immediately available to pay the purchase price and consummate the transactions contemplated by the MBO Agreeement. (the “Financing Commitment”). Upon receipt of the MBO Certifications and the Financing Commitment, Parent shall cause Sub to accept and pay for the tendered shares of Company Common Stock in accordance with the terms of this Agreement. Upon delivery of notice by Parent and Sub to C-W Co., ▇▇▇▇▇▇▇ and the Company that the Offer has been consummated, the Company and C-W Co. shall consummate the transactions contemplated by the MBO Agreement.
Appears in 1 contract
Sources: Merger Agreement (Clark Inc)
The Offer. (a) Subject to the provisions terms of this Agreement, as promptly as practicable (but in no event later than the fifth business day from and including five Business Days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the OfferPending Offer to reflect the execution, terms and conditions of this Agreement. The obligation date on which the Pending Offer is amended, which shall be the date hereof, is referred to in this Agreement as the “Offer Amendment Date”). The obligations of 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 tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of the “Offer Conditions”). The Offer shall expire at midnight, New York City time, on the 10th Business Day following the Offer Amendment Date (such time or such subsequent time to which may be waived by Merger Sub in its sole discretion, provided that, without the consent expiration of the Company, Merger Sub shall not waive the Minimum Condition (as defined Offer is extended in Exhibit A)) and to accordance with the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent , the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder“Expiration Date”). Merger Sub expressly reserves the right right, in its sole discretion, to 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 shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) change, modify or waive the Minimum Tender Condition; provided that, Parent may, at any time in its sole discretion and without the consent of the Company, amend the Minimum Tender Condition such that the determination of the number of outstanding shares of Company Common Stock on a fully diluted basis shall exclude all options and convertible securities with an exercise price or conversion price greater than the Offer Price, (iv) add to the conditions set forth in Exhibit AA or modify or change any Offer Condition in a manner adverse to any holders of Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.1(a), extend or otherwise change the Expiration Date of the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend otherwise amend, modify or modify supplement any term of the terms of the Offer in any a manner adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock in their capacity as such. Notwithstanding anything in this Agreement to the foregoingcontrary, Merger Sub may, in its sole discretion, without the consent of the Company, but subject to (A) without limiting Parent’s or Merger Sub’s obligations under the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)following sentence, (i) extend the OfferOffer on one or more occasions, in consecutive increments of up to ten Business Days (or such longer period as the parties hereto may agree) each, if at the on any then-scheduled expiration date Expiration Date of the Offer any of the conditions Offer Conditions shall not have been satisfied or, to the extent waivable by Parent or Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or waived, and (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Parent and Merger Sub agrees agree that: , to the extent requested in writing by the Company prior to any then-scheduled Expiration Date of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to) (A) in the event it would otherwise be entitled to terminate if any of the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions Conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (gb) of clause (ii) of Exhibit A shall not have been satisfied or, to the extent waivable by Parent or Merger Sub, waived, and provided that it is reasonably expected that such condition or conditions shall be satisfied or waived, it shall give prior to the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodTermination Date, extend the Offer on one or more occasions, in consecutive increments of up to ten Business Days each (or such longer period as the parties hereto may agree), until the earlier of (1) such time as such condition is, or conditions are, Offer Conditions are satisfied or waived (but not beyond the Termination Date) and (2B) if any of the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Minimum Tender Condition or the conditions specified Offer Conditions set forth in paragraphs paragraph (d) or (e) of Annex clause (ii) of Exhibit A are applicable); provided that if -------- any such condition is shall not have been satisfied by the date so chosen by the Companyor, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of extent waivable by Parent or Merger Sub, waived on such then-scheduled Expiration Date, but all the Minimum Condition to other Offer Conditions set forth in Exhibit A shall be satisfied, it shall, at the request of the Companysatisfied on such then-scheduled Expiration Date, extend the Offer for on one or more occasions, in consecutive increments of up to five Business Days (or such longer period as the parties hereto may agree) each, for an aggregate period of time of not more than 20 Business Days; provided, however, that (i) Merger Sub shall not be requested by required to extend the Company Offer beyond the Termination Date or at any time Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article VIII and (ii) if the Minimum Tender Condition is not satisfied, but all other Offer Conditions are satisfied or waived, Merger Sub shall only be obligated to extend the Offer for one additional period not to exceed and not less than ten business days from such scheduled expiration date. (10) Business Days.
(b) Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of Tax pursuant to Section 1.1(e)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration Expiration Date of the Offer; provided, however, that notwithstanding . Acceptance for payment of shares of Company Common Stock pursuant to and subject to the -------- ------- foregoing Parent mayconditions 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.” Merger Sub expressly reserves the right, in its sole discretion, extend to elect to provide for a “subsequent offering period” in accordance with Rule 14d-11 under the expiration date Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”) following the Offer Closing, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for all shares validly tendered during such subsequent offering period. The Offer may not be terminated prior to exceed ten business days and its Expiration Date, unless this Agreement is validly terminated in no event ending after December 31accordance with Article VIII. If the Offer is terminated or withdrawn by Merger Sub, 1997or this Agreement is terminated in accordance with Section 8.1, if Parent reasonably believes that as a result prior to the acceptance for payment of such extension 90% or more of the Shares will be Company Common Stock tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there Merger Sub shall have been tenderedpromptly return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(bc) On As promptly as reasonably practicable following the date of commencement of the OfferOffer Amendment Date, Parent and Merger Sub shall file with the SEC a an amendment to its Tender Offer Statement on Schedule 14D-1 TO filed originally on May 10, 2012 under cover of Schedule TO with respect to the Pending Offer, which shall reflect the execution, terms and conditions of this Agreement and contain an a supplement to the offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent and Merger Sub all material respects with information concerning the requirements of Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to 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 become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities lawsLaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, and shall use its counsel reasonable best efforts to give the Company the opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto. Prior to the filing of the 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 Merger Sub shall be given provide the Company a reasonable opportunity to review the and comment on such Offer Documents or response (including the proposed final version thereof), and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree shall give reasonable consideration to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(cd) Parent shall contribute 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 Offer.
(e) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to perform any of its other obligations the Offer, the Merger or otherwise pursuant to this AgreementAgreement to any holder of shares of Company Common Stock such amounts as Merger Sub 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 any other applicable Law. To the extent that amounts are so withheld and paid over by Merger Sub to the appropriate Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Merger Sub.
(f) For purposes of this Agreement (including exercise of the Top-Up Option) and the Offer, unless otherwise mutually agreed to by the Company and Parent, any shares of Company Common Stock subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer unless and until the shares of Company Common Stock underlying such notices of guaranteed delivery have been delivered to Merger Sub.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 10.1 and so long as promptly as practicable but none of the events or circumstances set forth in no event Annex A hereto shall have occurred and be continuing, not later than the fifth seventh business day from and including the date of the public announcement of the execution of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub toSubsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer"Exchange Act")), the Offer at a price equal to the Common Stock Price for each share of Company Common Stock. The obligation of Merger Sub toSubsidiary to consummate the Offer, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only solely to the those conditions set forth in Exhibit Annex A. It is agreed that the conditions to the Offer set forth on Annex A (any are for the benefit of which Subsidiary and may be waived asserted by Merger Sub Subsidiary regardless of the circumstances giving rise to any such condition, and Subsidiary expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the prior written consent of the Company, Merger Sub Subsidiary shall not waive the Minimum Condition (as defined in Exhibit Annex A) or the condition set forth in paragraph (f) of Annex A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act).
(b) Subsidiary expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offerprovided, except that, that without the prior written consent of the Company, Merger Sub shall not no modification or change may be made which (i) reduce decreases the number of shares of Common Stock subject to the OfferPrice (except as permitted by this Agreement), (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) changes the cash offer priceMinimum Condition, (iv) limits the number of shares of Company Common Stock sought pursuant to the Offer, (v) changes the material conditions to the Offer in a manner adverse to the Company or its stockholders or option holders, or (vi) amend or modify any term of imposes additional material conditions to the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub maySubsidiary may (but shall not be required under this Agreement or otherwise to), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for such period as may be determined by Subsidiary in its sole discretion (each such extension period not to exceed 20 business days at a time), if at the then-scheduled expiration date of the Offer any of the conditions to Merger SubSubsidiary's obligation obligations to purchase accept for payment and pay for shares of Company Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , and (Aiii) in the event it would otherwise be entitled to terminate extend the Offer at any scheduled expiration thereof due to the failure of on one or more occasions for an aggregate period of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, not more than 20 business days if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request has been satisfied but less than 90% of the Company, extend the Offer for such period as may be requested by the Company Common Stock has been validly tendered and not to exceed ten business days from such scheduled expiration dateproperly withdrawn. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shallpromptly after expiration of the Offer, Subsidiary shall accept for payment and pay for, and Parent shall cause Merger Sub toSubsidiary to accept for payment and pay for, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated Subsidiary is permitted to purchase pursuant to accept and pay for under applicable law. Notwithstanding the Offer immediately after the expiration of the Offer; providedforegoing, however, that notwithstanding the -------- ------- foregoing Parent may, Subsidiary may in its sole discretion, extend the expiration date of the Offer discretion elect to provide for a subsequent offering period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tenderedpursuant to, and not withdrawnon the terms required by, fewer than 90% of Rule 14d-11 under the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Exchange Act.
(bc) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO") with respect to the OfferOffer which will comply in all material respects with the provisions of applicable federal securities laws, which shall and will contain an the offer to purchase relating to the Offer and a forms of related letter letters of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents Parent shall comply as to form in all material respects with the requirements deliver copies of the Securities Exchange Act proposed forms of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary Company as far in order to make the statements therein, in light advance of the commencement of the Offer as is reasonably practicable under the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied for review and comment by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities lawsits counsel. The Company and its counsel shall be given a reasonable opportunity to review any amendments and supplements to the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company's stockholders. Parent and Merger Sub agree to shall provide the Company and its counsel in writing any comments Parentthat Subsidiary, Merger Sub Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Each of such comments.
(c) the Company, Parent and Subsidiary shall contribute promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect and Parent and Subsidiary further agree to Merger Sub on a timely basis the funds take all steps necessary to purchase any shares of Common Stock that Merger Sub becomes obligated cause the Schedule TO as so corrected to purchase pursuant be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Offer stockholders of the Company, in each case, as and to perform any of its other obligations pursuant to this Agreementthe extent required by applicable federal securities laws.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including after the date of the public announcement by Buyer and the Company of this Agreement and in any event no later than seven (7) business days after the date of this Agreement, Merger Sub shall, and Parent Buyer shall cause Merger Sub toto commence a tender offer (as it may be amended from time to time as permitted under this Agreement, commence the “Offer”), with the initial expiration date of the Offer to be twenty (20) business days from the commencement of such Offer, to purchase all of the outstanding shares of common stock, par value $0.001 per share, of the Company (“Company Common Stock”) (and, if applicable, any associated rights pursuant to the Rights Agreement or other arrangement of similar effect) at a purchase price (the “Offer Price”) of $4.25 per share of Company Common Stock, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in this Agreement. The obligation of Merger Sub to, and of Parent Buyer to cause Merger Sub to, to commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the “Offer Conditions”) (any of which may be waived in whole or in part by Buyer or Merger Sub in its sole their reasonable discretion, provided that, without the consent of the Company, except that Buyer and Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Buyer and Merger Sub expressly reserves reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Buyer and Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Price; (iii) modify amend or add to the conditions set forth in Exhibit A, Offer Conditions; (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, ; (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) Offer; or (vi) amend or modify any other term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Buyer and Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer (A) if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived; provided, that notwithstanding anything to the contrary, if any of the conditions to the Offer are not satisfied or waived or (ii) on any scheduled expiration date of the Offer, Buyer and Merger Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided further, that in no event shall Buyer and Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date; (B) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; or (AC) in after the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the conditions set forth in the first sentence Securities Exchange Act of the introductory paragraph or paragraphs 1934 (a) or (g) of Exhibit A to be satisfied or waivedsuch act, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementamended, and that nothing in this Section 1.1 shall modify Parent's the rules and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companyregulations promulgated thereunder, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a“Exchange Act”); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date). Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer and this AgreementOffer, Merger Sub shall, and Parent Buyer shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Merger Sub tofirst accepts shares for payment pursuant to the Offer (such date, pay regardless of whether Buyer and Merger Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the “Acceptance Date”), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent Buyer and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (the “Schedule TO”), with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Buyer and Merger Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's ’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation covenant is made by Parent Buyer or Merger Sub with respect to information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of ParentBuyer, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Buyer and Merger Sub further agrees 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 other Offer Documents as so corrected to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent Buyer and Merger Sub agree to provide the Company and its counsel any comments ParentBuyer, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent Buyer shall contribute 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 Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject Upon the terms and subject to the provisions conditions of this AgreementAgreement (including Article IX), as promptly as practicable (but in no event later than the fifth business day from and including ten (10) Business Days following the date of the public announcement of this Agreement, ) Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer; provided, that the Company agrees that no shares of Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by amended in accordance with this Agreement, the “Offer Conditions”).
(i) The initial Expiration Date shall be 12 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Parent and Merger Sub expressly reserve the right, at any time, to, in its their sole discretion, provided thatwaive, without the consent of the Companyin whole or in part, Merger Sub shall not waive the Minimum any Offer Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (iA) reduce the number of shares of Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition, (D) impose conditions to the Offer (other that are different than by increasing or in addition to the cash offer price) Offer Conditions, or (viE) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of Common Stock.
(ii) Notwithstanding anything in this Agreement to the Company's stockholders. The initial expiration date shall be September 15contrary, 1997. Notwithstanding the foregoing, Parent and Merger Sub (A) may, in their sole discretion (subject to the obligations of Parent and Merger Sub under Section 2.1(a)(ii)(B)), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for any period if, if at the on any then-scheduled expiration date Expiration Date, any of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Conditions shall not be satisfiedsatisfied or, if in Parent’s or Merger Sub’s sole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer (1) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (“Nasdaq”) applicable to the Offer. Merger Sub agrees that: , (A2) in for a period beginning on the event it would otherwise be entitled to terminate commencement of, and ending 10 Business Days after the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs cessation of, (a) any general suspension in trading in, or limitation on prices for, securities on any national securities exchange or in the over the counter market in the U.S., (b) a declaration of a banking moratorium or any suspension of payments in respect of a banking moratorium or any suspension of payments in respect of banks in the U.S. (whether or not mandatory), or (gc) any limitation (whether or not mandatory) imposed by any Governmental Entity on the extension of Exhibit A credit by banks or other lending institutions in the U.S., and (3) until any waiting period (and any extension thereof) applicable to be satisfied or waived, it shall give the Company notice thereof and, at the request consummation of the CompanyOffer under the HSR Act and any applicable competition, if such conditions are reasonably likely antitrust or investment Laws of jurisdictions other than the U.S. shall have expired or been terminated; provided, however, that in no event shall Parent or Merger Sub be required to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, beyond the Termination Date or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 at any time that Parent or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right Sub are permitted to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs pursuant to Article IX.
(diii) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any required Tax withholding of Taxes pursuant to Section 7.13) all shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the Expiration Date (as it may be extended and re-extended in accordance with this Section 2.1(a)). The Offer Price payable in respect of each share of Common Stock pursuant to the preceding sentence shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement. Acceptance for payment of shares of Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the OfferOffer 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”. Parent and Merger Sub expressly reserve the right to, in their sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a such period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at (including any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar daysextensions thereof) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.exceed
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including Promptly after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to (and Merger Sub shall, and Parent shall cause Merger Sub to, use its commercially reasonable efforts to within 10 days after the date hereof), commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase all Company Shares for the Stock Consideration or the Cash Consideration, at the election of the Stockholders, and otherwise as herein provided. In the Offer. , each Company 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 from Merger Sub, at the election of the holder: (i) $1.35 in cash, without interest (as adjusted pursuant to Section 2.1(c)(i), the “Cash Consideration”), or (ii) .7764 shares of Parent Common Stock (as adjusted pursuant to Section 2.1(c)(ii), the “Stock Consideration”), in each case subject to proration as set forth in Section 2.1(e).
(b) The obligation of Merger Sub toto accept for payment or exchange, and of Parent to cause Merger Sub topay for or exchange, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered Company Shares pursuant to the Offer shall be subject only to the Minimum Condition (as defined in Annex A hereto) and to the other conditions set forth in Exhibit Annex A attached hereto (any of which may be waived by collectively, the “Offer Conditions”). Merger Sub expressly reserves the right, in its sole discretion, provided that, discretion and without the consent of the Company, Merger Sub shall not waive to increase the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered consideration payable pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub provided the Cash Consideration does not exceed 50% of its obligations hereunder. Merger Sub expressly reserves the right total consideration payable in the Offer, and to modify the terms waive any condition of the Offer, except thatprovided that the conditions described in clauses (b) and (c)(ii), without (iii), (iv) and (v) of the Offer Conditions shall not be waivable. Subject to satisfaction or waiver (if permitted pursuant to the foregoing) of the Offer Conditions as of the Expiration Date and to the extension rights described in Section 2.1(i) below, Merger Sub shall, and Parent shall cause Merger Sub to, promptly accept for payment or exchange all Company Shares that have been validly tendered and not withdrawn pursuant to the Offer, and Merger Sub shall not otherwise extend the Offer. The Company agrees that no Company Shares held by the Company or any of its Subsidiaries will be tendered in the Offer. Without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Company Shares subject to the Offer, (ii) reduce the price per share of Common Cash Consideration or Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Consideration, (iii) waive or modify or add to the conditions set forth in Exhibit AMinimum Condition, (iv) except as provided add to or modify any Offer Conditions or amend any term of the Offer set forth in this Agreement, in each case, in any manner materially adverse to the remainder holders of this Section 1.1Company Shares, extend the Offer, or (v) change the form of consideration payable in consideration.
(c) In the Offer (other than by increasing the cash offer price) event that on or (vi) amend or modify any term before consummation of the Offer in any manner adverse Parent and the Company receive the items described on Schedule 6.21 according to any the terms thereof, and the amount of the Company's stockholders. The initial expiration date Galil Termination Fee exceeds (the amount of such excess, if any, the “Galil Adjustment Amount”) the amount Parent pays to Galil under Section 6.21(a), if any (such amount actually paid by Parent to Galil, the “Galil Payment”):
(i) the Cash Consideration shall be September 15increased by the quotient obtained by dividing (A) the Galil Adjustment Amount, 1997by (B) the total number of Company Shares outstanding on the date hereof (the “Per Share Adjustment Amount”); and
(ii) the Stock Consideration shall be increased by a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (A) the Per Share Adjustment Amount, by (B) $1.61.
(d) Subject to Sections 2.1(e), (f) and (g), each holder of Company Shares shall be entitled to elect (i) the number of Company Shares which such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of Company Shares which such holder desires to exchange for the right to receive Stock Consideration (a “Stock Election”). Notwithstanding For the foregoingavoidance of doubt, a holder of Company Shares shall be permitted to make a Stock Election with respect to a portion of such holder’s Company Shares and make a Cash Election with respect to such holder’s other Company Shares. Any Cash Election or Stock Election shall be referred to herein as an “Election,” and shall be made on a form furnished by Merger Sub mayfor that purpose, without the consent included as part of the Companyletter of election and transmittal accompanying the Offer, but subject each in a form that is reasonably satisfactory to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii). Holders of record who hold Company Shares as nominees, (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer trustees or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure other representative capacities may submit multiple Forms of one or more Election on behalf of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or their respective beneficial holders.
(e) The maximum aggregate amount of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn cash payable pursuant to the Offer shall be equal to (x) the Cash Consideration multiplied by (y) 50% of the total number of Company Shares outstanding that Merger Sub becomes obligated to are tendered (and not withdrawn) and accepted for purchase pursuant to the Offer immediately after (such amount, the expiration “Cash Consideration Cap”). The maximum aggregate amount of Stock Consideration issuable pursuant to the Offer shall be (x) the Stock Consideration multiplied by (y) 75% of the Offer; provided, however, total number of Company Shares outstanding that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of are tendered (and not withdrawn) and accepted for exchange pursuant to the Offer for a period not to exceed ten business days and (such amount, the “Stock Consideration Cap”), provided that in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of shall the Shares will be tendered in Stock Consideration Cap exceed the Offer. If, at any scheduled expiration date prior product of: (1) the amount equal to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90(A) 19.9% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or shares of Parent Common Stock outstanding immediately prior to October 6, 1997.
(b) On the date of commencement consummation of the Offer, Parent less (B) the product of (y) the total number of Company Shares issuable upon exercise of the then outstanding Company Warrants and (z) the Stock Merger Sub shall file with Consideration, multiplied by (2) the SEC a Tender Offer Statement on Schedule 14D-1 with respect quotient obtained by dividing (y) the total number of Company Shares outstanding that are tendered (and not withdrawn) and accepted for purchase pursuant to the Offer, which shall contain an offer to purchase and a related letter by (z) the total number of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply Company Shares outstanding as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsdate.
(ci) Parent If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Consideration Cap, all such Elections shall contribute be subject to Merger Sub proration as follows. For each Cash Election, the number of Company Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of Company Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest whole Company Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Consideration Cap and (y) the denominator of which shall be the product of the aggregate number of Company Shares subject to all Cash Elections made by all holders of Company Shares, multiplied by the Cash Consideration. All Company Shares subject to a Cash Election, other than Company Shares converted into the right to receive the Cash Consideration in accordance with this Section 2.1(e)(i), shall be converted into the right to receive the Stock Consideration. All prorations resulting from this Section 2.1(e)(i) shall be applied on a timely basis pro rata basis, such that each Stockholder who tenders Company Shares subject to a Cash Election bears its proportionate share of the funds necessary proration, based on the percentage of the total Company Shares subject to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant a Cash Election tendered by such Stockholder to the Offer and aggregate Company Shares tendered subject to perform any of its other obligations pursuant to this AgreementCash Elections.
Appears in 1 contract
Sources: Merger Agreement (Endocare Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as reasonably practicable but in no event later than the fifth business day from and including the date of the public announcement of this AgreementMay 17, Merger 2000, Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "Exchange Act"), the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in the attached Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger except that Sub shall not waive the Minimum Condition (as defined in Exhibit A)) without the consent of the Company) and subject to the terms rights of Parent and conditions of Sub to terminate this AgreementAgreement as provided in Section 8.
1. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to Offer Price or the Preferred Share Offer (except pursuant to Section 3.4)Price, (iii) modify or add impose any other conditions to the conditions set forth in Exhibit AOffer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1Sections 1.1(b) and (c), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) Offer, or (vi) amend or modify any other term of the Offer in any a manner adverse to any the holders of Shares. Sub shall not provide for a subsequent offering period in accordance with Rule 14d-11 under the Company's stockholders. The initial expiration Exchange Act.
(b) Subject to the terms and conditions hereof, the Offer shall expire at midnight, New York City time, on the date shall be September 15that is 20 business days after the date the Offer is commenced; provided, 1997. Notwithstanding the foregoing, Merger that Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period reasonably determined by Sub after consultation with its legal advisors to be required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer and (iii) if all Offer Conditions are satisfied or in order to obtain any material regulatory approval applicable waived but the sum of the number of Common Shares tendered pursuant to the Offer. Merger Sub agrees that: (A) in Offer and the event it number of Common Shares owned by Parent or one or more direct or indirect Subsidiaries of Parent is less than 90% of the outstanding Common Shares but at least 85% of the outstanding Common Shares, extend the Offer on one or more occasions for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be entitled permitted under clause (i) or (ii) of this sentence (provided that all Offer Conditions shall have been irrevocably deemed to have been satisfied or waived if Sub elects to extend the Offer pursuant to clause (iii) of this sentence), subject in the case of each of clauses (i) and (ii) of this sentence to the right of Parent, Sub or the Company to terminate this Agreement pursuant to the Offer terms hereof.
(c) Parent and Sub agree that if at any scheduled expiration thereof due to date of the failure of one Offer, the Minimum Condition, the HSR Condition, the Exon-Flor▇▇ ▇▇▇dition (as defined in Exhibit A) or more either of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (ae) or (gf) of Exhibit A shall not have been satisfied, but at such scheduled expiration date all the conditions set forth in paragraphs (a), (b), (c), (d), (g) and (h) of Exhibit A shall then be satisfied, or if not then satisfied, are reasonably capable of being satisfied prior to be satisfied or waivedNovember 10, it shall give the Company notice thereof and2000, at the request of the CompanyCompany (confirmed in writing), if such conditions are reasonably likely to be satisfied during the requested extension period, Sub shall extend the Offer until the earlier of from time to time (1) each such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company individual extension not to exceed ten business days from such after the previously scheduled expiration date. Subject , unless the parties otherwise agree), subject to any right of Parent, Sub or the Company to terminate this Agreement pursuant to the terms and conditions of hereof.
(d) Subject only to the Offer Conditions and so long as this AgreementAgreement has not been terminated in accordance with its terms, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no any event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of in compliance with the Shares will be tendered in obligations respecting prompt payment pursuant to Rule 14e-1(c) under the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Exchange Act.
(be) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (the "Schedule TO") with respect to the Offer, which shall contain as an exhibit or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules Parent and regulations promulgated thereunder and Sub shall cause to be disseminated the Offer Documents on the date first published, sent or given to holders of Shares as and to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact extent required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsapplicable Federal securities laws. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. The Company shall cooperate with Parent and its counsel in responding to any such comments.
(cf) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
(g) Parent or Sub shall engage an information agent in connection with the Offer.
Appears in 1 contract
Sources: Merger Agreement (Verio Inc)
The Offer. (a) Subject to the provisions last sentence of this AgreementSection 1.1(a), as promptly as practicable (but in no any event not later than the fifth five business day from and including the date of days after the public announcement of this Agreement, Merger Sub shall, the execution and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions delivery of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Parent will cause Purchaser to commence (iii) modify or add to within the conditions set forth in Exhibit A, (iv) except as provided in the remainder meaning of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, net to the seller in cash (subject to reduction for any stock transfer taxes payable by the seller, if payment is to be made to a Person other than the Person in whose name the certificate for such Shares is registered, or any applicable federal back-up withholding), provided, however, that Parent may designate another direct or indirect subsidiary of Parent as the bidder thereunder (within the meaning of Rule 14d-1(e) under the Exchange Act), in which event references herein to Purchaser will be deemed to apply to such subsidiary, as applicable. Notwithstanding the foregoing, if between the date of this Agreement and the ------------ rules and regulations promulgated thereunder and Effective Time the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Amount will be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Parent to cause Purchaser to commence the Offer, to consummate the Offer Documents on the date first published, sent or given and to the Company's stockholders, shall not contain any untrue statement of a material fact or omit accept for payment and to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing pay for inclusion Shares validly tendered in the Offer Documents. Each and not withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in Annex A hereto (the "Offer Conditions").
(b) Without the prior written consent of Parentthe Company, Merger Sub Purchaser will not, and Parent will cause Purchaser not to, (i) decrease or change the Company agrees promptly to correct any information provided by it for use form of the Per Share Amount, (ii) decrease the number of Shares sought in the Offer, (iii) amend or waive the Minimum Condition (as defined in Annex A hereto) or impose conditions other than the Offer Documents if and Conditions on the Offer, (iv) extend the expiration date of the Offer (the "Expiration Date") (which will initially be 20 business days following the commencement of the Offer) except (A) as required by Law, (B) that, in the event that any condition to the Offer is not satisfied or waived at the time that the Expiration Date would otherwise occur, (1) Purchaser must extend the Expiration Date for an aggregate of 10 additional business days to the extent that necessary to permit such information shall have become false or misleading condition to be satisfied and (2) Purchaser may, in any material respectits sole discretion, extend the Expiration Date for such additional period as it may determine to be appropriate (but not beyond June 30, 1999) to permit such condition to be satisfied, and each (C) that, in the event that the OCC Condition (as defined in Annex A hereto) is not satisfied, and all other Offer Conditions have been satisfied or waived at the time that the Expiration Date (as extended pursuant to Section 1.1(b)(iv)(A) or (B)), would have otherwise occurred, Purchaser must either irrevocably waive the OCC Condition or extend the Expiration Date (but not beyond the date that is 60 calendar days from the date of Parent and Merger Sub 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 filing with the SEC and to be disseminated to Office of the Company's stockholders, Comptroller of the Currency (the "OCC") in each case as and respect of the OCC Condition) to the extent required by applicable Federal securities laws. The Company and its counsel shall necessary to permit the OCC Condition to be given a reasonable opportunity to review satisfied, or (v) amend any term of the Offer Documents and all amendments and supplements thereto prior in any manner materially adverse to their filing Shareholders (including without limitation to result in any extension which would be inconsistent with the SEC or dissemination preceding provisions of this sentence), provided, however, that (1) subject to stockholders of applicable legal requirements, Parent may cause Purchaser to waive any Offer Condition, other than the Company. Parent Minimum Condition, in Parent's sole discretion and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to (2) the Offer Documents promptly after may be extended in connection with an increase in the receipt of such comments.
(c) Parent shall contribute consideration to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase be paid pursuant to the Offer so as to comply with applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). Except as set forth above and subject to perform applicable legal requirements, Purchaser may amend the Offer or waive any Offer Condition in its sole discretion. Assuming the prior satisfaction or waiver of its other obligations the Offer Conditions, Parent will cause Purchaser to accept for payment, and pay for, in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to this Agreementthe Offer as soon as practicable after the Expiration Date or any extension thereof.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but practicable, and in any event no event later more than the fifth business day from and including seven (7) Business Days, after the date of the public announcement of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. ; provided that Parent and Merger Sub Subsidiary may at waive any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant conditions to the Offer (except pursuant to Section 3.4), (iii) modify or add to for the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall Minimum Tender Condition which may not be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, waived without the prior written consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or may make changes in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreementexcept that, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to without the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request written consent of the Company, (i) no change may be made to the form of consideration to be paid, (ii) no decrease in the Offer Price or the number of Shares sought in the Offer may be made, (iii) no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and (iv) neither Parent nor Merger Subsidiary may extend the Offer for such number of days (up to 20 calendar daysOffer, except in accordance with Section 2.1(c) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 19972.1(e).
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect TO (as amended and supplemented from time to time, the Offer“Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the Securities Exchange Act related letter of 1934transmittal and other appropriate documents (which documents, as amended (or supplemented from time to time, are referred to herein collectively as the "Exchange Act"“Offer Documents”), . Parent and the ------------ rules and regulations promulgated thereunder and Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities Laws. In conducting the Offer, Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.1. The Company and its counsel shall be given a reasonable opportunity to review and comment on the date first publishedOffer Documents prior to their filing with the SEC, sent or given and Parent and Merger Subsidiary shall give reasonable and good faith consideration to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is comments made by the Company and its counsel. Parent and Merger Subsidiary agree to provide the Company (i) any comments that may be received from the SEC or Merger Sub its staff (whether written or oral) with respect to information supplied by the Company in writing for inclusion Offer Documents promptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the Offer Documentsresponse of Parent and Merger Subsidiary to these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees 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 to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsLaw.
(c) The initial scheduled expiration date of the Offer shall be midnight, New York City time, on the twentieth Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (such initial date, or if and only if the expiration time and date is extended as authorized in this Agreement, such date as so extended, the “Expiration Date”); provided, however, that Merger Subsidiary shall: (i) from time to time extend the Offer for one or more periods of up to 10 Business Days each, the length of each such period to be determined by Merger Subsidiary in its sole discretion, if at the scheduled Expiration Date any of the conditions of the Offer, including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall contribute cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the Expiration Date.
(d) If fewer than 90% of the issued and outstanding Shares are accepted for payment pursuant to the Offer by the Expiration Date, then Merger Subsidiary may, and at the request of the Company, shall, and upon any such request of the Company, Parent shall cause Merger Subsidiary to, provide for one or more subsequent offering periods of up to an additional twenty (20) Business Days in the aggregate (collectively, the “Subsequent Period”) pursuant to Rule 14d-11 of the Exchange Act; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period.
(e) Notwithstanding the above, in no event shall Merger Subsidiary be required to, or shall Parent be required to cause Merger Subsidiary to, extend the Offer beyond the End Date (as defined in Section 8.1(b)(i)). In no event shall Merger Subsidiary extend the Offer beyond the End Date without the consent of the Company. The Offer may not be terminated prior to its scheduled Expiration Date (as it may be extended in accordance with this Agreement) unless this Agreement is terminated in accordance with Section 8.1.
(f) Parent shall provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and provided further that the Company is prepared (in accordance with Section 1.02(a)), to file with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 on the same date as Merger Sub commences the Offer, subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth 11 business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligation obligations of 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 tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A hereto (any the “Offer Conditions”). The initial expiration date of which may the Offer shall be waived by at the time that is one minute following 11:59 p.m., Eastern time, on the date that is 20 business days (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) after the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Merger Sub expressly reserves the right to waive, in its sole discretion, provided in whole or in part, any Offer Condition or modify the terms of the Offer in any manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) waive, amend or modify the Minimum Tender Condition or add to the conditions set forth in Exhibit ATermination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in the remainder of this Section 1.11.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vvi) change the form or terms of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed to by Parent and the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or (iiirrespective of whether the Minimum Tender Condition has been satisfied) and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval The Nasdaq Global Market (“Nasdaq”) applicable to the Offer. ; provided that Merger Sub agrees that: (A) in the event it would otherwise shall not be entitled required to terminate extend the Offer beyond the Outside Date. In addition, if at any the otherwise scheduled expiration thereof due to the failure of one or more date of the conditions set forth in Offer each Offer Condition (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be shall have been satisfied or waivedwaived and the Minimum Tender Condition shall not have been satisfied, it shall give the Company notice thereof and, at the request of Merger Sub may elect to (and if so requested by the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to), extend the Offer until the earlier for one or more consecutive increments of (1) such time duration as such condition is, or conditions are, satisfied or waived and (2) the date chosen requested by the Company but not more than ten business days each (or for such longer period as may be agreed to by Parent and the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood ); provided that the Company shall not be entitled to make such request if it is then in breach of this AgreementMerger Sub to, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right not be required to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyto, extend the Offer for such period as may pursuant to this sentence on more than three occasions; provided, further, that Merger Sub shall not, and shall not be requested by required to extend the Company not to exceed ten business days from such scheduled expiration dateOffer beyond the Outside Date. Subject to On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer (which shall be the next business day after the expiration of the Offer absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer; provided, however, that notwithstanding . The time at which Merger Sub first irrevocably accepts for purchase the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date shares of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be Company Common Stock tendered in the OfferOffer is referred to as the “Offer Closing Time”. If, at any scheduled The Offer may not be terminated or withdrawn prior to its expiration date prior to October 1(as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), 1997unless this Agreement is validly terminated in accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, there Merger Sub shall have been tenderedpromptly terminate the Offer and return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar daysregistered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain include an offer to purchase and a related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A hereto (such Schedule 14D-1 TO, as amended from time to time, and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Company Common Stock as and to the extent required by applicable U.S. federal securities Law. The Company shall not contain any untrue statement of a material fact or omit furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and Merger Sub shall (x) provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable) and (y) give reasonable and good faith consideration to any comments made by the Company or its counsel. Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(c) Parent shall contribute 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.
(d) If, between the date of this Agreement and the Offer and to perform Closing Time, the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of its shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other obligations pursuant to this Agreementsimilar transaction, then the Offer Price shall be appropriately adjusted.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, use commercially reasonable efforts to commence within three (3) Business Days (and in any event Merger Sub shall, and Parent shall cause Merger Sub to, commence within ten (10) Business Days), the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which C as such conditions may be waived by Merger Sub modified in its sole discretion, provided that, without accordance with the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the express terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be midnight (New York City time) on the Offertwentieth (20th) business day following commencement of the Offer (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderas amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right in its sole discretion to waive, in whole or in part, 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 the Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AC or modify any condition set forth in Exhibit C in any manner adverse to the holders of the Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholdersCompany Common Stock. The initial expiration date shall be September 15, 1997parties hereto agree to cooperate in good faith to modify the terms of the Offer as and if required by the SEC. Notwithstanding any provision of this Agreement to the foregoingcontrary, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with its terms, if at the otherwise scheduled expiration date of the Offer any condition to the Offer is not satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be agreed by the Company); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. Upon the mutual written consent of the parties hereto, each in order its sole discretion, Merger Sub shall extend the Offer on one or more occasions for an aggregate period of not more than ten (10) Business Days each to obtain any material regulatory approval applicable the extent that, on such expiration date, all conditions to the Offer are satisfied but the shares of Company Common Stock that have been validly tendered and not validly withdrawn pursuant to the Offer, considered together with all other shares of Company Common Stock owned by Parent and its subsidiaries, shall constitute less than ninety percent (90%) of the outstanding shares of Company Common Stock. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more If all of the conditions set forth in Exhibit C are satisfied but the first sentence number of shares of the introductory paragraph Company Common Stock that have been validly tendered and not withdrawn in the Offer and accepted for payment, together with any shares of the Company Common Stock then owned by Parent or paragraphs Merger Sub, is less than ninety percent (a) or (g90%) of Exhibit A to be satisfied or waived, it shall give the outstanding shares of the Company notice thereof andCommon Stock, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of Merger Sub may in its sole discretion make available one (1) such time as such condition isor more “subsequent offering periods”, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with Rule 14d-11 of the terms Exchange Act, of this Section 1.1(a); not less than ten (10) Business Days and not more than twenty (B20) Business Days in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer aggregate for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateall subsequent offering periods. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of Tax pursuant to Section 2.02(h)) all shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, Offer (as it may be extended and re-extended in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and accordance with this Section 1.01(a)). Nothing contained in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered this Section 1.01(a) shall affect any termination rights in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Article VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents shall comply as Parent and Merger Sub agree to form in take all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and steps necessary to cause the Offer Documents on to be disseminated to holders of shares of the date first published, sent or given Company Common Stock as and to the Company's stockholders, extent required by the Exchange Act. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer DocumentsDocuments or reasonably requested by Parent and Merger Sub for inclusion therein. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, respect and to correct any material omissions therein; and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and 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 ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Parent, Merger Sub or their counsel may receive from or engage in with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or the commencement or occurrence of any such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Merger Sub shall not terminate the Offer and prior to perform any scheduled expiration thereof without the prior written consent of its other obligations the Company, except in the event that this Agreement is terminated pursuant to Article VIII. In the event that this AgreementAgreement is terminated pursuant to Article VIII prior to any scheduled expiration thereof, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the purchase of shares of the Company Common Stock in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of the Company Common Stock to the registered holders thereof.
Appears in 1 contract
Sources: Merger Agreement (Global Defense Technology & Systems, Inc.)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.01, subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth ten business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the CompanyOffer shall be at the time that is one minute following 11:59 p.m., Merger Sub shall not waive New York City time, on the Minimum Condition date that is 20 business days (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as defined in Exhibit Aamended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) and to after the terms and conditions date the Offer is first commenced (within the meaning of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent Rule 14d-2 promulgated under the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to waive, in its sole discretion, in whole or in part, any Offer Condition or 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 price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) waive, amend or modify the Minimum Tender Condition or add to the conditions set forth in Exhibit ATermination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in the remainder of this Section 1.11.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vvi) change the form or terms of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed to by Parent and the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or (iiirrespective of whether the Minimum Tender Condition has been satisfied) and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval The Nasdaq Global Market (“Nasdaq”) applicable to the Offer. ; provided that Merger Sub agrees that: (A) in the event it would otherwise shall not be entitled required to terminate extend the Offer beyond the Outside Date. In addition, if at any the otherwise scheduled expiration thereof due to the failure of one or more date of the conditions set forth in Offer each Offer Condition (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be shall have been satisfied or waivedwaived and the Minimum Tender Condition shall not have been satisfied, it shall give the Company notice thereof and, at the request of Merger Sub may elect to (and if so requested by the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to), extend the Offer until the earlier for one or more consecutive increments of not more than ten business days each (1) or for such time longer period as such condition is, or conditions are, satisfied or waived may be agreed to by Parent and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood ); provided that the Company shall not be entitled to make such request if it is then in breach of this AgreementMerger Sub to, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right not be required to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyto, extend the Offer for such period as may pursuant to this sentence on more than three (3) occasions; provided, further that Merger Sub shall not, and shall not be requested by required to extend the Company not to exceed ten business days from such scheduled expiration dateOffer beyond the Outside Date. Subject to On 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, and pay for for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer (which shall be the next business day after the expiration of the Offer absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer; provided, however, that notwithstanding . The date on which Merger Sub first irrevocably accepts for purchase the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date shares of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be Company Common Stock tendered in the OfferOffer is referred to as the “Offer Closing Date”. If, at any scheduled The Offer may not be terminated or withdrawn prior to its expiration date prior to October 1(as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), 1997unless this Agreement is validly terminated in accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, there Merger Sub shall have been tenderedpromptly terminate the Offer and return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar daysregistered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain include an offer to purchase and a related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Company Common Stock as and to the extent required by applicable U.S. federal securities Law. The Company shall not contain any untrue statement of a material fact or omit furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (cincluding any amendment or supplement thereto) Parent shall contribute with the SEC or the dissemination thereof to Merger Sub on a timely basis the funds necessary holders of Company Common Stock, or responding to purchase any shares comments of Common Stock that Merger Sub becomes obligated to purchase pursuant the SEC or its staff with respect to the Offer Documents, Parent and to perform any of its other obligations pursuant to this Agreement.Merger Sub shall
Appears in 1 contract
The Offer. (a) Subject to the provisions terms and conditions of this AgreementAgreement and provided that this Agreement has not been terminated in accordance with Article VIII and that the Company shall have complied with its obligations under Section 1.01(b) and 1.02(c), as promptly as practicable (but in no event later than the fifth ten business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”). The obligation obligations of 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 validly tendered and not withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the CompanyOffer shall be 12:00 midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-1(g)(3) of the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer, except that, without the 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 price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) waive, amend or modify the Minimum Tender Condition or add to the conditions set forth in Exhibit ATermination Condition, (iv) add to the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as provided in the remainder of otherwise permitted under this Section 1.1Agreement, terminate or extend the Offer, (vvi) change the form of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to the holders of Company Common Stock in any material respect or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right parties’ respective rights to terminate this Agreement pursuant under Article VIII and provided that in no event shall Merger Sub be required to Section 8.1(b)(ii)extend the expiration date of the Offer to any date later than the Outside Date, Merger Sub shall, and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or waived, and (iiB) extend the Offer for any the minimum period required by any Law, any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to or any rules and regulations of the Offer or in order to obtain any material regulatory approval NASDAQ Global Market (“Nasdaq”) applicable to the Offer. In addition, subject to the parties’ respective rights to terminate this Agreement under Article VIII, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedmay, it shall give the Company notice thereof and, and at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer Company for one or more consecutive increments of not more than ten business days each (or for such longer period as may be requested agreed by the Company not Company); provided, that in no event shall Merger Sub (1) be required or permitted to exceed ten business days from such scheduled extend the expiration datedate of the Offer to any date later than the Outside Date or (2) be required or permitted to extend the expiration date of the Offer more than two times pursuant to this sentence. Subject to On 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, and pay for for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent mayOffer and, in its sole discretionany event, extend the expiration date of the Offer for a period not to exceed ten no more than three business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result the Acceptance Time. The time at which Merger Sub first accepts for payment the shares of such extension 90% or more of the Shares will be Company Common Stock tendered in the OfferOffer is referred to as the “Acceptance Time”. If, at any scheduled The Offer may not be terminated prior to its expiration date prior to October 1(as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), 1997unless this Agreement is validly terminated in accordance with Section 8.01. If the Offer is terminated or withdrawn by Merger Sub, there or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall have been tenderedpromptly return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar daysregistered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Parent and Merger Sub shall file with the SEC Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents ”) and shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Company Common Stock as and to the extent required by applicable Law. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact Parent and Merger Sub all information concerning the Company required by applicable Law to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer DocumentsDocuments or as reasonably requested by Parent, so as to enable Parent and Merger Sub to comply with their respective obligations under this Section 1.01(b). Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give good faith consideration to any comments reasonably made by the Company or its counsel.
(c) Parent shall contribute 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 Offer.
(d) Notwithstanding anything to the contrary herein, Parent and Merger Sub shall be entitled to perform any of its other obligations deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as Parent or Merger Sub 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 any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall be treated for all purposes of this AgreementAgreement as having been paid to the Person in respect of which such deduction or withholding was made.
(e) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring or having a record date on or after the date hereof and prior to the Acceptance Time, in each case, effected in compliance with Section 5.01, and the Offer Price as so adjusted shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action.
Appears in 1 contract
Sources: Merger Agreement (Sapient Corp)
The Offer. (a) Subject to the provisions terms and conditions of this AgreementAgreement (including ARTICLE VIII), as promptly as practicable but in no event later than the fifth business day from and including within ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer; provided, that the Company agrees that no shares of Company Common Stock owned by the Company or any Company Subsidiary will be tendered pursuant to the Offer. The obligation obligations of 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 tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be 5:00 p.m., Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the OfferNew York City time, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderon July 1, 2010. Merger Sub expressly reserves the right to right, at any 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 shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) impose conditions to the Offer (other that are different than by increasing or in addition to the cash offer price) Offer Conditions, or (viv) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of Company Common Stock.
(ii) Notwithstanding anything in this Agreement to the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoingcontrary, Merger Sub (A) may, in its sole discretion (subject to the obligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions in increments of no more than five (5) Business Days, if at the on any then-scheduled expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement), until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC") or ”), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iii) In addition to the extension obligation set forth in Section 1.1(a)(ii)(B), Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, (A) in the event it would otherwise be entitled to terminate Minimum Tender Condition is not satisfied, (B) the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs subsection (a) or (gv) of Exhibit A is not satisfied, and prior to be such expiration the Company did not have at least five (5) days written notice from Parent of the facts or circumstances underlying the failure of such condition, or (C) the condition set forth in subsection (vii) of Exhibit A is not satisfied, but in each case all of the Offer Conditions set forth in Exhibit A other than those described above are satisfied or or, in Merger Sub’s sole discretion, waived, it then Merger Sub shall, and Parent shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely cause Merger Sub to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs case of clause (dA) or clause (eC) of Annex A are applicable); provided that if -------- any above, on the first such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companydate, extend the Offer for such period ten (10) Business Days (the “Initial Extension”), and if on the scheduled expiration date of the Initial Extension the requirements for extension pursuant to clause (A) or clause (C) (as the case may be) continue to be requested by satisfied, further extend the Company not to exceed ten business days from Offer for five (5) Business Days (the “Second Extension”), or (y) in the case of clause (B) above, on the first such scheduled expiration date. Subject , extend the Offer for five (5) Business Days; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times in the case of clause (A) or clause (C) (for a period of ten (10) Business Days for the Initial Extension and five (5) Business Days for the Second Extension), or more than one time, for five (5) Business Days, in the case of clause (B), and in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a)). The Offer Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; provided, however, that notwithstanding Offer is referred to in this Agreement as the -------- ------- foregoing Parent may“Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days (up to 20 calendar days) as a “subsequent offering period” in accordance with Rule 14d-11 under the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, however such period (including any extensions thereof) shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
exceed twenty (c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.20)
Appears in 1 contract
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article VIII, as promptly as practicable but in no event later than ten business days (as defined in Rule 14d-1(g)(3) promulgated by the fifth business day from United States Securities and including 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, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the SEC. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A A.
(any b) The initial expiration date of which the Offer shall be the 20th business day following the commencement of the Offer (determined using Exchange Act Rule 14d-1(g)(3)). The Offer may not be terminated prior to its scheduled expiration (as such expiration may be waived by Merger Sub extended or re-extended in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of accordance with this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer), but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderunless this Agreement is terminated in accordance with Section 8.1. Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the conditions set forth in Exhibit A, (iv) except as provided A or modify any condition set forth in Exhibit A in a manner adverse to the remainder holders of this Section 1.1, extend the OfferShares, (v) extend the Offer (except as expressly provided below), (vi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) Offer, or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled If on or prior to terminate the Offer at any then scheduled expiration thereof due to date of the failure of one or more Offer, all of the conditions to the Offer (including the conditions and requirements set forth in Exhibit A) have not been satisfied, or waived by Parent or Merger Sub, Parent may, in its sole discretion, without the first sentence consent of the introductory paragraph or paragraphs Company cause Merger Sub to extend the Offer for successive periods of up to twenty (a20) or (g) business days each, the length of Exhibit A each such period to be satisfied or waiveddetermined by Parent in its sole discretion, it in order to permit the satisfaction of such conditions, but in no event shall give the Company notice thereof andOffer be extended past the Outside Date without the Company’s Consent. If fewer than 90% of the issued and outstanding Shares are accepted for payment pursuant to the Offer, then Merger Sub may, and at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementshall, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- upon any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, Parent shall cause Merger Sub to, make available a “subsequent offering period”, in accordance with Rule 14d-11 promulgated by the SEC under the Exchange Act, of not less than ten business days (but in no event with an expiration date after December 31, 2009). For the avoidance of doubt, the parties hereto agree that vested shares of Restricted Stock (as defined in Section 2.4(b)) may be tendered in the Offer and be acquired by Parent or Merger Sub pursuant to the Offer.
(c) If at the then scheduled expiration date of the Offer, all of the conditions (other than the Minimum Tender Condition) to the Offer set forth in Exhibit A (other than any conditions which by their nature are to be satisfied at the closing of the Offer) are satisfied or, if permitted, waived, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for such period as may be requested by the Company in increments of not to exceed more than ten business days from each until such scheduled expiration date. Subject time as the Minimum Tender Condition is satisfied; provided that Merger Sub shall not be required to extend the Offer beyond the Outside Date (as defined in Section 8.1(b)).
(d) 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 of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(be) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Company shall promptly provide Parent with all information relating to the Company that is required to be included in the Offer --------------- Documents, and hereby consents to the inclusion of the recommendations of the Company Board and the Special Committee of Independent Directors of the Company Board (the “Special Committee”). Parent and Merger Sub agree that the Offer Documents shall comply as to form in all material respects with the requirements of applicable Federal securities laws and, on the Securities Exchange Act of 1934, as amended (date first filed with the "Exchange Act"), SEC and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, ’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 in which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to 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 the Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all any amendments and supplements thereto prior to their filing such documents with the SEC or dissemination of such documents to the stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, shall consult with the Company and its counsel prior to responding to such comments, and shall provide to the Company and its counsel a copy of any written responses thereto and telephonic notice of any oral responses or discussions with the SEC staff.
(cf) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject On the terms and subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including following the date of the public announcement of this AgreementAgreement (and in any event within ten (10) Business Days), Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence the OfferOffer within the meaning of Rule 14d-2 under the 1934 Act. The obligation obligations of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, and pay for, any shares of Common Company Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A B (any of which may be waived by the “Offer Conditions”).
(i) Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly Subsidiary reserves 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 Subsidiary shall not (iA) reduce the number of shares of Common Company Stock subject to the Offer, (ii) reduce the price per share of Common Stock Offer or sought to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth purchased in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (vB) reduce the Offer Price except in accordance with Section 2.10, (C) add to or impose conditions to the Offer other than the Offer Conditions or modify any Offer Condition, (D) change the form of consideration payable in the Offer, (E) extend or otherwise change the expiration date of the Offer (other than except as required or permitted by increasing the cash offer price) this Section 2.01 or (viF) amend otherwise amend, modify or modify supplement any term of the terms of the Offer in any a manner adverse in any material respect to any holders of Company Stock.
(ii) The Offer shall initially be scheduled to expire at 5 p.m., New York time, on the 20th Business Day following the commencement of the Company's stockholdersOffer (determined using Rule 14d-1(g)(3) promulgated under the 1934 Act). The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub Subsidiary may, in its sole discretion, without the consent of the Company, but subject to or if requested by the Company's right , Merger Subsidiary shall, extend the Offer on one or more occasions, in consecutive increments of between two (2) and ten (10) Business Days each, with the length of such period to terminate this Agreement pursuant to Section 8.1(b)(iibe determined by Parent or Merger Subsidiary (or such other period as the parties hereto may agree), (i) extend the Offer, if at the on any then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions Offer Conditions are satisfied or waived or satisfied. Merger Subsidiary shall (iiand Parent shall cause Merger Subsidiary to) extend the Offer Offer, and such extension shall be, for any period required by Applicable Law, any rule, regulation, regulation interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval NYSE Amex applicable to the Offer. Notwithstanding anything to the contrary in this Section 2.01(a)(ii), Merger Sub agrees that: Subsidiary shall not be required to extend the Offer beyond the earliest to occur of (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure valid termination of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); 10.01 and (B) in 5 p.m., New York time, on the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to Outside Date.
(iii) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, accept for payment and pay for (subject to any applicable Tax withholding pursuant to Section 2.11) all shares of Common Company Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding Offer (as it may be extended and re-extended in accordance with this Section 2.01(a) and in compliance with Applicable Laws) and in any event in compliance with Rule 14e-1(c) under the -------- ------- foregoing Parent may, in its sole discretion, extend 1934 Act. The date of acceptance for payment of shares of Company Stock pursuant to and subject to the expiration date conditions of the Offer for is referred to in this Agreement as the “Offer Closing”.
(A) If at any then-scheduled expiration of the Offer, any Offer Condition shall not have been satisfied or waived and no further extensions or re-extensions of the Offer are required pursuant to Section 2.01(a)(ii), Merger Subsidiary may terminate the Offer by delivery of a period not written notice to exceed ten business days the Company, and (B) if this Agreement is terminated pursuant to Section 10.01, then Merger Subsidiary shall promptly (and, in no event ending after December 31any event, 1997, if Parent reasonably believes that as a result within two (2) Business Days of such extension 90% or more of the Shares will be tendered in termination), irrevocably and unconditionally terminate the Offer. IfThe termination of the Offer pursuant to clause (A) of the immediately preceding sentence is referred to in this Agreement as the “Offer Termination”. If the Offer is terminated or withdrawn by Merger Subsidiary, at any scheduled expiration date prior to October 1or this Agreement is terminated in accordance with Section 10.01, 1997, there Merger Subsidiary shall have been tenderedpromptly return, and not withdrawnshall cause any depository acting on behalf of Merger Subsidiary to return, fewer than 90% all tendered shares of Company Stock to the registered holders thereof to the extent required by the terms of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Offer.
(b) On As promptly as practicable on the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and such other ancillary documents pursuant to which the Offer will be made (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments theretothereto and such other ancillary documents, the "“Offer Documents")”) and cause the Offer Documents to be disseminated to the Company’s stockholders as and to the extent required by Applicable Laws. The Offer --------------- Documents shall comply as will contain all information that is required to form be included therein in all material respects accordance with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange 1934 Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first publishedany other Applicable Laws. The Company shall promptly furnish to Parent and Merger Subsidiary in writing, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents, all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required under the 1934 Act or reasonably requested in connection with any action contemplated by this Section 2.01(b) to be included in the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of references to the Fairness Opinion and all other material disclosure relating to the Company Financial Advisor (including the fees and other consideration that the Company Financial Advisor will receive upon consummation of the Tender Offer and the Merger). Each of Parent, Merger Sub Subsidiary and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and and, subject to the provisions of this Agreement, each of Parent and Merger Sub further agrees to Subsidiary 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 to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities lawsall Applicable Laws. The Company and its counsel shall be given a reasonable the opportunity to review and comment on (i) the Offer Documents and all prior to the filing thereof with the SEC, (ii) any supplements or amendments and supplements thereto prior to the filing thereof with the SEC, and (iii) copies of any correspondence between the Parent and Merger Subsidiary and their filing with representatives, on the one hand, and the SEC or dissemination the staff of the SEC, on the other hand. Parent and Merger Subsidiary shall, in good faith, give due consideration to stockholders of any such comments proposed by the Company. Parent and Merger Sub agree to Subsidiary shall (A) provide the Company and its counsel in writing with any comments or other communications Parent, Merger Sub Subsidiary or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments or other communications, (B) give the Company and its counsel a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments or other communications and to provide comments on any response, and (C) give due consideration to any such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Conmed Healthcare Management, Inc.)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article VIII and subject to the provisions of conditions set forth in this AgreementAgreement and Exhibit A hereto, as promptly as reasonably practicable but in no event later than the fifth business day from and including after the date of the public announcement of this Agreementhereof, and in any event within seven (7) Business Days (as defined in Section 9.3(b) hereof) after such date, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence to accept for payment and pay for any Shares tendered pursuant to the Offer and accept for payment, and pay for, any shares of Common Stock tendered not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver by Merger Sub of the conditions set forth in Exhibit A hereto and the terms and conditions hereof (any of which may be waived by collectively, the “Offer Conditions”). Merger Sub may, in its sole discretion, provided that, without waive any Offer Condition or modify the consent terms or conditions of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to Offer consistent with the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) reduce the cash offer pricenumber of Shares to be purchased in the Offer, (iv) waive or change the Minimum Condition or the Termination Condition (as such terms are defined in Exhibit A), (v) add to the Offer Conditions or modify them in a manner adverse to the holders of Shares, (vi) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (vivii) amend or modify any term of the Offer set forth in any this Agreement in a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934initially expire at midnight, as amended (the "Exchange Act")New York City time, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first publishedthat is twenty (20) business days (for purposes of this Section 1.1(b), sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel business days shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing calculated in accordance with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.Rule 14d-1(g)
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement by Parent and the Company of the execution and delivery of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub toSub, and of Parent to cause Merger Sub toSub, to commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)"Offer Conditions") and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion ; provided, however, that paragraph (i) of the Shares tendered pursuant Offer Conditions shall apply only to the obligation of Sub, and of Parent to cause Sub, to consummate the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify (other than waive) the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend or modify any other term of or add any new term to the Offer in any manner materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares or (vii) waive the Minimum Condition (as defined in Exhibit A). Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer, (C) extend the Offer from time to time until two business days after the expiration of the waiting period under the HSR Act (as defined in Section 4.05 below) and (D) extend the Offer for a period not to exceed 15 business days, notwithstanding that all conditions to the Offer or in order are satisfied as of such expiration date of the Offer, if, immediately prior to obtain any material regulatory approval applicable such expiration date (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer equal less than 90% of the outstanding Shares (on a fully diluted basis). In addition, Sub shall be obligated to extend the Offer. Merger Sub agrees that: (A) in , if at the event it would otherwise be entitled to terminate scheduled expiration date of the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence Offer Conditions capable of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfaction shall not have been satisfied or waived, it until the satisfaction or waiver thereof; provided, however, that there shall give the Company notice thereof and, at the request of the Company, if be no such conditions are reasonably likely obligation to be satisfied during the requested extension period, extend the Offer until beyond the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) 60th business day after the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions commencement of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of shall the Shares will be tendered in the Offer. If, at any scheduled expiration date Offer expire prior to October 1January 21, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 19971998.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the OfferOffer acceptable in form and substance to the Company and within the time period set forth in subsection (a) above, which shall contain an offer to purchase and a related letter of transmittal (the "Letter of Transmittal") and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall be consistent with this Agreement, shall add no conditions to the consummation of the Offer not set forth in Exhibit A and shall add no provisions to the Offer materially adverse to the Company Stockholders. Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to written information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 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. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Parent and Sub shall also provide the Company and its counsel with copies of all written responses filed by Parent or Sub with the SEC and a reasonable opportunity to review and comment upon such responses prior to filing with the SEC.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase any shares of Common Stock accept for payment, and pay for, all Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(d) The Company agrees that neither the Offer and to perform any nor purchases of its other obligations pursuant to this AgreementShares thereunder breach the terms of the Confidentiality Agreement (as defined in Section 7.02 below).
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement has not been terminated pursuant to the provisions of this AgreementSection 7.01, as promptly as reasonably practicable but (and, in no event later than the fifth business day from and including any event, within ten (10) Business Days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A Annex II (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided thatthe “Offer Conditions”), without and not any other conditions. The Offer shall initially expire at 11:59 p.m. (New York City time) on the consent date that is twenty (20) Business Days following the commencement of the Company, Merger Sub shall not waive Offer (determined using Rule 14d-1(g)(3) promulgated under the Minimum Condition (as defined in Exhibit AExchange Act)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to 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 shall not, and Parent shall not permit Sub to, (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) amend, modify or add to waive the conditions set forth in Exhibit AMinimum Tender Condition, (iv) except as provided add to the Offer Conditions or amend, modify or supplement any Offer Condition in the remainder any manner adverse to any holder of this Section 1.1, extend the OfferCompany Common Stock, (v) except as expressly provided in this Section 1.01(a), terminate, extend or otherwise amend or modify the expiration date of the Offer (or take any other action that would have the effect of extending the expiration date of the Offer), (vi) change the form of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to any holder of Company Common Stock or (viii) provide any “subsequent offering period” within the Company's stockholdersmeaning of Rule 14d-11 promulgated under the Exchange Act. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject Subject to the Company's right parties’ rights to terminate this Agreement pursuant to Section 8.1(b)(iiArticle VII and Sub’s right to waive any Offer Condition (other than the Minimum Tender Condition), Sub shall, and Parent shall cause Sub to, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties may agree) each, if, at any then-scheduled expiration of the Offer, if at the scheduled expiration date of the any Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Condition shall not be satisfiedhave been satisfied or waived, until such time as each such conditions are condition shall have been satisfied or waived or and (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger ; provided, however, that Sub agrees that: (A) in the event it would otherwise shall not be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedrequired to, it shall give the Company notice thereof and, at the request of and without the Company, if such conditions are reasonably likely to be satisfied during the requested extension period’s prior written consent shall not, extend the Offer until beyond the earlier of (1) such time as such condition is, Outside Date or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate a valid termination of this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateits terms. Subject to Upon 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 (x) immediately following any then-scheduled expiration of Common Stock validly tendered and not withdrawn pursuant to the Offer (if each Offer Condition shall have been satisfied or, if permitted by this Agreement, waived at such time) irrevocably accept for payment all Shares that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; (provided, howeverthat, for the avoidance of doubt, if the date of such expiration is the Outside Date, such acceptance shall occur on the Outside Date) (such acceptance, the “Offer Closing”) and (y) following such acceptance, and no later than as soon as practicable on the Business Day that notwithstanding immediately follows the -------- ------- foregoing Parent maydate on which the Offer expired, pay for all such Shares. The date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” 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 Section 1.01(a)), unless this Agreement is validly terminated in accordance with Section 7.01. If this Agreement is terminated pursuant to Section 7.01, then Sub shall promptly (and, in its sole discretionany event, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result within twenty-four (24) hours of such extension 90% or more of the Shares will be tendered in termination), irrevocably and unconditionally terminate the Offer. IfIf the Offer is terminated or withdrawn by Sub, at any scheduled expiration date prior to October 1or this Agreement is terminated in accordance with Section 7.01, 1997, there Sub shall have been tenderedpromptly return, and not withdrawnshall cause any depository acting on behalf of Sub to return, fewer than 90% of all tendered Shares to the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 promulgated under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto, the “Schedule TO”), which shall contain include, as exhibits, an offer to purchase and a related letter of transmittal and transmittal, a summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents and exhibits included therein pursuant to which the Offer will be mademade (such Schedule TO and the documents attached as exhibits thereto, together with any amendments or supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated to the Company's stockholdersholders of Shares as, and to the extent, required by applicable federal securities Law. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact Parent and Sub all information concerning the Company that is required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer DocumentsDocuments or as otherwise reasonably requested by Parent. Prior to the filing of the Offer Documents (or any amendment or supplement thereto) or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, Parent and Sub shall provide the Company a reasonable opportunity to review and to propose comments on such document or response and Parent and Sub shall give reasonable consideration to any comments provided by the Company. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaws. Parent and Merger Sub agree shall promptly notify the Company upon the receipt of any comments from the SEC (or the staff of the SEC) or any request from the SEC (or the staff of the SEC) for amendments or supplements to the Offer Documents, and shall provide the Company with copies of all correspondence between Parent, Sub and its counsel their respective representatives, on the one hand, and the SEC (or the staff of the SEC), on the other hand (and shall orally describe any oral comments). Parent and Sub shall use their respective reasonable best efforts to respond as promptly as reasonably practicable to any comments Parent, Merger Sub or their counsel may receive from of the SEC (or its the staff of the SEC) with respect to the Offer Documents promptly after the receipt of such commentsDocuments.
(c) Parent shall contribute provide, or cause to Merger Sub be provided to Sub, on a timely basis basis, all of the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any Offer; provided, that in no way shall this Section 1.01(c) reduce, offset or limit the obligations of its other obligations Parent pursuant to Section 2.02(a).
(d) Notwithstanding anything in this AgreementAgreement to the contrary, if, from the date of this Agreement until the Effective Time, the number of outstanding Shares shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment or other similar transaction, or a stock dividend or stock distribution thereon shall be declared with a record date within said period, the Offer Price shall be appropriately adjusted to provide the holders of Shares tendered in the Offer the same economic effect as contemplated by this Agreement prior to such event.
Appears in 1 contract
Sources: Merger Agreement (Landauer Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated and subject to the provisions of this AgreementAgreement and the conditions set forth on Annex A hereto, as promptly as practicable after the date hereof, but in no event later than the fifth ten business day from and including the date of days following the public announcement of the terms of this Agreement, Merger Sub shall, and Parent Logitech Subsidiary shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Offer. The obligation of Merger Sub to, and of Parent Logitech Subsidiary to cause Merger Sub to, commence the Offer and accept for payment, and pay for, payment any shares of Common Stock Shares tendered pursuant to in the Offer shall be subject only to the satisfaction of only those conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent on Annex A. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition 20th "business day" (as such term is defined in Exhibit A)Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and to 14d-2 under the terms and conditions of this AgreementExchange Act). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent and Logitech Subsidiary expressly reserve the right to purchase all or waive any portion of the Shares tendered pursuant condition to the Offer, but no such assignment shall relieve Parent Offer or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not, and Logitech Subsidiary shall not cause Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Cash Portion or reduce the Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Portion, (iii) waive or change the Minimum Condition (as defined in Annex A), (iv) modify in any manner adverse to the holders of Company Common Stock or add to the conditions to the obligation of Merger Sub to, or Logitech Subsidiary to cause Merger Sub to, accept for payment any Shares tendered in the Offer set forth in Exhibit Annex A, (ivv) except as provided in the remainder of this Section 1.1next two sentences, extend the Offer, Offer or (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, without the consent of the Company, but subject (x) extend the Offer for any period required by any rule, regulation, interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof; (y) from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived waived; or (iiz) extend the Offer for any reason on one or more occasions for an aggregate period required by any rule, regulation, interpretation or position of not more than 10 business days beyond the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it latest expiration date that would otherwise be entitled to terminate permitted under clause (x) or (y) of this sentence if on such expiration date there shall not have been tendered (and not properly withdrawn) at least 90% of the Offer at outstanding Shares on a Fully Diluted Basis. Logitech Subsidiary and Merger Sub agree that, if any scheduled expiration thereof due to the failure of one or more of the conditions to the Offer set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit on Annex A to be are not satisfied or waivedthen, it shall give the Company notice thereof and, at the request of the Company, if provided that such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier capable of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied or any such event has occurred; provided, however, that in no event shall Merger Sub be required to extend the Offer beyond July 15, 2001. Following expiration of the Offer, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, make available a "subsequent offering period" in accordance with Rule 14d-11 of the Exchange Act. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Logitech Subsidiary shall cause Merger Sub to, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. With respect to any such number of days (up to 20 calendar days) as Shares the Company may request. No such request Cash Portion shall be made net to the seller thereof in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997such seller.
(b) On the date of commencement of the Offer, Parent shall file with the SEC a Registration Statement on Form F-4, which will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act to register the offer and sale of Registered Parent Shares represented by Parent ADSs pursuant to the Offer (as the same may be supplemented or amended, the "Form F-4"). On the date of commencement of the Offer, Logitech Subsidiary and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with any communications filed with the SEC under cover of Schedule TO prior to commencement of the Offer in accordance with Rule 14d-2(b) under the Exchange Act, and as such Schedule TO may be supplemented or amended, the "Schedule TO") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO, the Form F-4 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of ParentLogitech Subsidiary, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Logitech Subsidiary and Merger Sub further agrees to shall, upon becoming aware that such information shall have become false or misleading in any material respect, take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO and Form F-4 as so amended or supplemented to be filed with the SEC and for the other 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 applicable Federal federal securities laws. The Logitech Subsidiary and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company. Parent Logitech Subsidiary and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Logitech Subsidiary or Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Logitech Subsidiary and/or Merger Sub to such comments.
(c) . Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase not issue certificates or scrip representing fractional Parent ADSs pursuant to the Offer and to perform any Offer. Logitech Subsidiary will pay cash in lieu of its other obligations pursuant to this Agreementfractional Parent ADSs in accordance with the provision set forth in the last two sentences of Section 2.4(d) hereof.
Appears in 1 contract
Sources: Merger Agreement (Labtec Inc /Ma)
The Offer. (a) The Merger Agreement provided for the commencement of the Offer no later than April 5, 2010. Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from applicable rules and including the date regulations of the public announcement of this AgreementSEC, Merger Sub shallIntersil expressly reserves the right from time to time, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions except as set forth elsewhere in Exhibit A (any of which may be waived by Merger Sub this Offer to Purchase, in its sole discretion, provided to waive any condition to the Offer, increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer. However, we have agreed in the Merger Agreement that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall we will not (i) reduce waive satisfaction of the number of shares of Common Stock subject to the Offer, Minimum Condition; (ii) reduce the price per share of Common Stock waive any condition relating to be paid pursuant (a) a waiting period applicable to the Offer or the Merger under the HSR Act or any other antitrust, competition or merger control laws or related legal requirements, (except pursuant b) legal proceedings by any governmental body of competent jurisdiction that seek to Section 3.4restrain, enjoin or otherwise prohibit the making or consummation of the Offer or the Merger or (c) enactment, amendment or enforcement of any legal requirement that would result in a legal proceeding of the type described in clause (b), in each case if any such waiver would be reasonably likely to result in personal liability to any director, officer, or employee of any party to the Merger Agreement; (iii) modify decrease the Per Share Amount or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer Offer; (other than by increasing iv) decrease the cash offer pricemaximum number of Shares sought to be purchased in the Offer; (v) or impose additional conditions to the Offer; (vi) amend or modify any term of the conditions to the Offer set forth in Section 15 — “Conditions to the Offer” in any manner adverse to any the holders of Shares; or (vii) except as provided in the Company's stockholders. The initial expiration date shall be September 15Merger Agreement, 1997. Notwithstanding extend or otherwise change the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer. There is no financing condition to the Offer. The Merger Agreement provides that unless the Merger Agreement is terminated in accordance with its terms, we (i) will extend the Offer from time to time if (A) any of the conditions condition to Merger Sub's our obligation to purchase shares of Common Stock shall Shares set forth in Section 15 — “Conditions to the Offer” is not be satisfiedsatisfied (or, until such time as such conditions are satisfied in accordance with the Merger Agreement, waived by Intersil or waived Purchaser) on or before the Expiration Date; or (iiB) extend the Offer for if any period required by any applicable law, rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof SEC Staff applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: requires such extension; (Aii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, will extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely pursuant to the failure immediately preceding clause (i) for consecutive periods of the Minimum Condition up to be satisfied, it shall, at the request of the Company, extend the Offer five business days each (or for such period as may be requested required by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreementany applicable law, Merger Sub shallrule, and Parent shall cause Merger Sub toregulation, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offerinterpretation or position); provided, however, that notwithstanding Purchaser shall not be required to extend the -------- ------- foregoing Parent Offer beyond July 20, 2010 (the “Outside Date”); and (iii) will extend the Expiration Date for any period required by the rules and regulations of the SEC or the NASDAQ Stock Market applicable to the Offer, including in connection with an increase in the Per Share Amount. However, we will not extend the Offer if all of the conditions to the Offer are satisfied or waived and we are permitted under applicable law to accept for payment and pay for validly tendered Shares that are not properly withdrawn. In addition, the Merger Agreement provides that if the Shares we acquire in the Offer (together with ▇▇▇▇▇▇ owned of record by Intersil, the Purchaser and their direct and indirect subsidiaries) represent less than 90% of Table of Contents the then-outstanding Shares, we may, in its our sole discretion, extend the expiration date of the Offer for a subsequent offering period not of up to exceed ten three to 20 business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of accordance with Rule 14d-11 under the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Sources: Offer to Purchase (Intersil Corp/De)
The Offer. (a) Subject to the provisions of this Agreement, and so long as promptly as practicable but in no event later than the fifth business day from and including the date none of the public announcement events or circumstances set forth in subsections (a) through (d) of this AgreementAnnex A hereto shall have occurred and be continuing, Merger Sub shall, and Parent shall cause Merger Sub to, as promptly as practicable (and in any event on or before the 10th calendar day after the date hereof) to commence (within the Offermeaning of Rule 14d-2 promulgated under the Exchange Act) the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, any shares of Common Stock for Shares validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer shall be subject only solely to the those conditions set forth in Exhibit Annex A. The conditions to the Offer set forth on Annex A (any are for the benefit of which Merger Sub and may be asserted or waived only by Merger Sub in its sole discretionSub; provided, provided thathowever, that without the prior consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit Annex A). The initial expiration date of the Offer (the “Initial Expiration Date”, and any expiration date after the Initial Expiration Date, the “Expiration Date”) and shall be the 20th Business Day following the commencement of the Offer.
(b) Merger Sub expressly reserves the right, in its sole discretion, to modify the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer; provided, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offerhowever, except that, that without the prior consent of the Company, Merger Sub shall not no modification or change may be made which (i) reduce decreases the number of shares of Common Stock subject to the OfferOffer Price (except as permitted by this Agreement), (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) changes the cash offer priceMinimum Condition, (iv) reduces or limits the number of Shares sought pursuant to the Offer, (v) changes the conditions to the Offer in a manner adverse to the holders of the Shares, (vi) amend imposes additional conditions to the Offer, (vii) extends the Offer except as provided in the next sentence, or modify (viii) makes any term other change which is adverse to the holders of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation ’s obligations to purchase shares of Common Stock accept for payment and pay for Shares shall not be satisfied or waived, extend and re-extend the Offer on one or more occasions for such period as is reasonably necessary to permit such conditions to be satisfied, until such time as such conditions are satisfied or waived or (ii) extend and re-extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer, and (iii) extend and re-extend the Offer on one or more occasions for an aggregate period of not more than 20 Business Days beyond the latest Expiration Date that would otherwise be permitted under clause (i) or (ii) of this sentence if, as of such date, the Minimum Condition has been satisfied but less than 90% of the outstanding Shares (on a fully diluted basis, excluding any Shares issuable pursuant to Section 1.5) have been validly tendered and not properly withdrawn; provided that Parent and Merger Sub irrevocably waive (A) the conditions to the Offer or in order set forth on Annex A and agree not to obtain any material regulatory approval applicable to assert such conditions as a basis for not consummating the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2B) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs pursuant to Sections 9.1(b)(i), (diii) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateiv). Subject to the terms and the conditions of the Offer and this Agreement, as soon as practicable after expiration of the Offer, Merger Sub shall accept for payment and pay for, and Parent shall cause Merger Sub to accept for payment and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer. Notwithstanding the foregoing, Merger Sub may in its sole discretion elect to provide for a subsequent offering period pursuant to, and on the terms required by, Rule 14d-11 under the Securities Exchange Act of 1934, as amended (“Exchange Act”).
(c) At the request of the Company, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for until such number of days (up to 20 calendar days) date as the Company may requestconditions set forth in Annex A have been satisfied; provided that such conditions are reasonably capable of being satisfied before the Outside Date. No such request Notwithstanding the foregoing, nothing contained in this Agreement shall be made by require Merger Sub to extend the Company if, in its sole judgment, it concludes that Offer beyond the Merger could be consummated on or prior to October 6, 1997Outside Date.
(bd) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement TO (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any all amendments and supplements or amendments thereto and including all exhibits thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects “Schedule TO”) which will on the date filed with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), SEC and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a ’s stockholders comply in all material fact or omit to state any material fact required to be stated therein or necessary in order to make respects with the statements therein, in light provisions of the circumstances under Exchange Act and the rules and regulations thereunder and any other applicable U.S. federal securities laws, and will contain the offer to purchase relating to the Offer and form of the related letter of transmittal (such Schedule TO and the documents included therein pursuant to which they were the Offer shall be made, not misleadingtogether with any supplements or amendments thereto and including the exhibits thereto, except are referred to herein collectively as the “Offer Documents”), provided, however, that no representation representation, warranty or covenant hereby is made or will be made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in, or information derived from the Company’s public SEC filings which is incorporated by reference or included in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub 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 to be disseminated to the Company's stockholders, in each case holders of Shares as and to the extent required by applicable Federal the U.S. federal securities laws. Parent shall deliver copies of the proposed forms of the Offer Documents to the Company and its counsel in advance of filing with the SEC and the commencement of the Offer and shall provide a reasonable opportunity for review and comment by the Company and its counsel. The Offer Documents shall be in a form reasonably acceptable to the Company. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all any amendments and supplements thereto to the initial Offer Documents prior to their filing with the SEC or dissemination to stockholders of the Company’s stockholders. Parent and Merger Sub agree to shall promptly provide the Company and its counsel any comments Parentcomments, written or oral, that Merger Sub Sub, Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of any such comments, and provide the Company and its counsel a reasonable opportunity to participate in preparation of responses to SEC comments. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the stockholders of the Company, in each case, as and to the extent required by applicable U. S. federal securities laws.
(ce) Parent hereby guarantees the full and timely performance of all of Merger Sub’s obligations under this Agreement and shall contribute 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 Common Stock Shares and Company Warrants that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
Sources: Merger Agreement (Analex Corp)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall amend the Offer to reflect this Agreement and amend the conditions to the Offer in no event later than the fifth business day from and including the accordance herewith. The expiration date of the public announcement Offer shall be the tenth day, other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (each a "BUSINESS DAY"), from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, Merger Sub shalldated August 8, 2002 and contained in the Schedule TO, and Parent shall cause Merger Sub toa related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, commence together with any supplements or amendments thereto, the Offer"OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of 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 tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Merger Parent and Sub in its sole their reasonable discretion, provided that, without the consent of the Company, Merger except that Parent and Sub shall not waive the Minimum Condition (as defined in Exhibit A)without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger and Sub expressly reserves reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Parent and Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Price; (iii) modify amend or add to the conditions set forth in Exhibit A, Offer Conditions; (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, ; (v) change the form of or reduce the consideration payable in the Offer (other than by increasing the cash offer price) Offer; or (vi) amend or modify any other term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Stockholders. Notwithstanding the foregoing, Merger Parent and Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) shall extend the OfferOffer for no longer than five Business Days at any one time, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SECCOMMISSION") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; (Aiii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason on one or more occasions for an aggregate period as may be requested by of not more than 10 Business Days beyond the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% this sentence; or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, (iv) may extend the Offer for such number one or more subsequent offering periods of days (up to an additional 20 calendar days) as Business Days in the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein aggregate pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "ACCEPTANCE DATE"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) As promptly as practicable after this Agreement is executed by Parent, Sub and the ------------ rules Company, Parent and regulations promulgated thereunder Sub shall file with the Commission an amendment to the Schedule TO. The Schedule TO shall reflect the terms of this Agreement, amend the conditions to the Offer in accordance herewith and contain the Offer Documents. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except ; provided that no representation covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing or any Company Stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees 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 Commission and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersCompany Stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC Commission or dissemination to stockholders of the CompanyCompany Stockholders. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff Commission with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase accept for payment, and 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 and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
Sources: Merger Agreement (Omnicare Inc)