The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions. (b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”). (c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 3 contracts
Sources: Merger Agreement (RP Management, LLC), Merger Agreement (Ramius Value & Opportunity LLC), Merger Agreement (Cypress Bioscience Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Section 8.1 and none of the events or conditions set forth in subparagraphs (a) through (c) of Annex II shall have occurred and be continuing and not have been waived by Parent or Merger Sub, as promptly as reasonably practicable after and, in any event, within five (5) Business Days of the date hereofof this Agreement, but in no event later than three Business Days following Parent and Merger Sub shall amend the public announcement of Pending Offer to reflect the execution of this Agreement, Agreement and the terms hereof. The obligations of Merger Subsidiary shall amend Sub to accept for payment and to pay for (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for) any shares of Company Common Stock validly tendered on or prior to the expiration of the Offer (as it may be extended and re-extended in accordance with this Agreement) and not properly withdrawn shall be subject to (i) increase the purchase price there being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City such time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer not properly withdrawn prior to the expiration date of the Offer (as it may be extended and not withdrawn, a re-extended in accordance with this Agreement) that number of Shares that, together with the Shares then owned by Parent and its Affiliates, shares of Company Common Stock which represents a majority of the total number shares of Shares Company Common Stock outstanding on a fully-diluted basis, without regard including after giving effect to whether any convertible or exchangeable securities are then vested and exercisable the issuances of shares of Company Common Stock pursuant to Section 2.12 (the “Minimum Condition”), and (ii) and to the other events or conditions set forth in Annex I and to no other conditions. I. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger SubsidiaryOffer, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) ), in accordance with the terms of the Offer, consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance after expiration of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends which shall initially be the later of April 2, 2010 or adds to the Offer Conditions or amends any other term date that is fifteen (15) Business Days after the date of this Agreement; provided, however, that (w) if on the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended and re-extended in accordance with this Agreement), any of the events or conditions to the Offer set forth on Annex I shall exist and, subject to the provisions of this Agreement, shall not be satisfied or waivedhave been waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to), from time to time time, extend the Offer for consecutive periods of not more than five (5) Business Days each until the earlier of (A) the date on which all of the events or conditions set forth in Annex I cease to exist or, subject to the provisions of this Agreement, are waived by Merger Sub and (B) the date on which this Agreement is terminated in accordance with ARTICLE VIII; provided that Merger Sub shall have no obligation to (and Parent shall have no obligation to cause Merger Sub to) so extend the Offer if (1) the events or conditions set forth in subsections (ii), (iii) and (iv) of the first paragraph of Annex I and subparagraph (a) of Annex I shall have ceased to exist, or subject to the provisions of this Agreement, been waived by Merger Sub, for a period of not less than ten (10) Business Days prior to the initial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended and re-extended in accordance with this Agreement) and, with respect to subsections (ii), (iii) and (iv) of the first paragraph of Annex I, such facts shall be reflected in an amendment to the Offer Documents prior to the start of such ten (10) Business Day period, (2) the events or conditions are set forth in subparagraphs (b), (c) and (d) of Annex I shall have ceased to exist or, subject to the provisions of this Agreement, been waived by Merger Sub, as of such expiration date and (3) the Minimum Condition is not satisfied as of such expiration date, (other than conditions which by their nature are to be satisfied x) if on the Acceptance Dateinitial expiration date of the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended and re-extended in accordance with this Agreement), the Company shall have delivered to Parent a valid Section 8.1(d) Notice, Merger Sub shall (and Parent shall cause Merger Sub to), from time to time, extend the Offer for consecutive periods of not more than five (5) Business Days each until the earlier of (A) the date on which all of the events or waived; conditions set forth in the paragraph immediately following Section 8.1(d)(i) cease to exist or are waived by the Company and (B) the date on which this Agreement is terminated in accordance with ARTICLE VIII, (y) Merger Subsidiary shall Sub may, in its sole discretion, extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission SEC (or the “SEC”staff thereof) or the Nasdaq Global Market NYSE applicable to the Offer; provided that in no event shall Offer and (z) Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or Sub may, in its sole discretion, provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 under the Exchange Act; provided that, in the case of clauses (w), (x), (y) and (z), in no event shall the Offer extend beyond the Walk-Away Date. Merger Sub expressly reserves the right from time to time to waive any of the 1934 Act. Subject conditions set forth in Annex I (other than the Minimum Condition, the Registration Condition, the Listing Condition and the condition set forth in subparagraph (e) of Annex I) or to increase the foregoing, including the requirements of Rule 14d-11, and upon Offer Price or to make any other changes in the terms and subject to the conditions of the Offer; provided that, without the prior written consent of the Company, Merger Subsidiary shallSub shall not decrease the Offer Price, and Parent 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, change, modify or waive the Minimum Condition, impose additional conditions to the Offer or modify or change any condition to the Offer in a manner materially adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer, reduce the time period during which the Offer shall cause it toremain open or, accept except for payment and pay forany extension required or permitted hereunder, extend or otherwise change the expiration date of the Offer, or amend, modify or supplement any other term of the Offer in any manner adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer.
(b) Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable after the expiration and, in any event, within five (5) Business Days of the Offerdate of this Agreement, all Shares (1) validly tendered and not withdrawn pursuant in order to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of reflect the execution of this AgreementAgreement and the terms hereof, Merger Subsidiary shall, and Parent shall file or cause its Affiliates to, to be filed with the SEC (i) file with the SEC an amendment to Parent’s registration statement on Form S-4 (as it may be amended or supplemented, the “Form S-4”) and (ii) an amendment to Parent’s and Merger Sub’s tender offer statement on Schedule TO, which shall include a revised offer as amended, each originally filed on March 5, 2010 with respect to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Pending Offer (collectively, such schedule together with the Form S-4, and the documents included therein pursuant to which the Offer is made, and any amendments or and supplements thereto, the “Offer Documents”), . Each Party shall use its best efforts (i) to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing and (ii) to have removed as promptly as reasonably practicable any stop order suspending its effectiveness. Subject to the extent required by applicable U.S. federal securities lawsCompany’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of Sharesshares of Company Common Stock as required by applicable U.S. federal securities Laws. Each of ParentParent and Merger Sub, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, shall not contain any untrue statement of a material fact or omit on the other hand, agree 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respectrespect or as otherwise required by Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case shares of Company Common Stock as and to the extent required by applicable U.S. federal securities lawsLaws. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. In addition, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (i) any comments or communications, whether written or oral comments oral, that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptlypromptly after Parent’s or Merger Sub’s, but in no event later than twenty-four hoursas the case may be, after the receipt of such comments, and, subject and (ii) a reasonable opportunity to participate in the response of Parent or Merger Sub to those comments and to provide comments on that response.
(c) In the event this Agreement is terminated pursuant to Section 8.1 prior to the provisions hereofAcceptance Time, Parent and Merger Sub shall promptly respond terminate the Offer without accepting any shares of Company Common Stock previously tendered and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof.
(d) No certificates or scrip representing fractional shares of Parent Common Stock shall be issued by virtue of the Offer, no dividends or other distributions of Parent shall relate to such commentsfractional share interests and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu of such fractional share interests, Parent shall pay to each holder of shares of Company Common Stock who would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such holder) an amount in cash equal to the product obtained by multiplying (i) the fractional share interest to which such holder would otherwise be entitled by (ii) the average closing sales price, rounded to four decimal points, of shares of Parent Common Stock on the NYSE (as reported in the Wall Street Journal, New York City edition) for the period of the ten (10) consecutive trading days ending on the second full trading day prior to the Acceptance Time (the “Parent Common Stock Cash Value”).
(e) If any portion of the Offer Price is to be registered in the name of or paid to a Person other than the Person in whose name the tendered shares of Company Common Stock are registered, the amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), or such other Person, or otherwise) payable on account of such issuance or transfer to such other Person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, unless evidence satisfactory to Merger Sub of the payment of such Taxes, or exemption therefrom, is submitted.
(f) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 3 contracts
Sources: Merger Agreement (Terra Industries Inc), Merger Agreement (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth this Agreement and this Agreement not having been terminated in Annex Iaccordance with Article 10 hereof, as promptly as ---------- practicable but in any event within five business days after the date hereof, but Merger Sub shall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations ------------ promulgated thereunder, an offer to purchase (the "Offer") all, and in no any event later ----- not less than three Business Days following the public announcement a majority on a fully diluted basis, of the execution outstanding shares of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase Common Stock at a price to of $6.50 14.75 per Share (the “Offer Price”)share of Common Stock, net to the seller in cash, without interest (ii) provide that the conditions such price or any higher price paid pursuant to the Offer, the "Offer shall be as set forth in Annex I Consideration"). Notwithstanding the foregoing, if between ------------------- the date of this Agreement and that no other conditions shall apply, (iii) provide that the expiration date closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be midnight (New York City time) correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Purchaser and Merger Sub to commence the date that is ten Business Days (Offer and accept for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentpayment, and (iv) make such other amendments as are necessary or appropriate to conform pay for, any shares of Common Stock tendered pursuant to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I Exhibit A hereto and to no other conditions. Subject to the terms and conditions of this Agreement. --------- Subject to the provisions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly shall expire 20 business days after the later date of (x) the earliest date as of which Merger Subsidiary its commencement, unless this Agreement is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer terminated in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to Article 10, in which case the Offer and promptly following (whether or not previously ---------- extended in accordance with the acceptance terms hereof) shall expire on such date of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditionstermination.
(b) Merger Subsidiary Sub expressly reserves the right to waive any modify the terms of the Offer Conditions and to make waive any other changes condition of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the Minimum Condition (as defined in Exhibit A), --------- (ii) reduce the terms number of or conditions shares of Common Stock subject to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (Biii) no reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (vi) amend or adds modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner --------- adverse to the holders of Common Stock or (vii) impose additional conditions to the Offer Conditions or amends any other term of than such conditions required by applicable law. So long as this Agreement is in effect and the conditions to the Offer in any manner adverse to have not been satisfied or waived, Merger Sub may, without the stockholders consent of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall extend (or shall extend at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at for an aggregate period of not more than 20 business days (for all such extensions) beyond the originally scheduled or extended expiration date of the Offer any of Offer. So long as this Agreement is in effect and the conditions to the Offer shall not be have been satisfied or waived, from time to time until Merger Sub may, without the consent of the Company, extend the Offer for an aggregate period of not more than 20 business days (for all such conditions are satisfied (other extensions) beyond the originally scheduled expiration date of the Offer, if the number of shares of Common Stock that have been validly tendered and not withdrawn represent less than conditions which by their nature are to be satisfied on 90% of the Acceptance Date) or waived; issued and (y) outstanding shares of the Common Stock. Notwithstanding the foregoing, Merger Subsidiary shall Sub may, without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided . It is agreed that the conditions set forth in no event shall Exhibit A are for the sole --------- benefit of Merger Subsidiary Sub and Purchaser and may be required to extend the Offer beyond the End Date unless Parent asserted by Merger Sub or Purchaser, or may be waived in whole or in part by Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)Sub or Purchaser, in which case their sole discretion. The failure by Merger Subsidiary Sub or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Actdeemed an ongoing right which may be asserted at any time. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) shares of Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in as soon as practicable after the Subsequent Offering Period (expiration of the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(c) As promptly as practicable after Purchaser shall provide or cause to be provided to Merger Sub on a timely basis the date hereof, but in no event later than three Business Days following funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the public announcement of the execution of this Agreement, Merger Subsidiary shall, Offer and shall cause be liable on a direct and primary basis for the performance by Merger Sub or the Surviving Corporation (as defined in Section 2.1), as the case may be, of its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in ----------- obligations under this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the payment of the Offer Documents promptlyConsideration, but the Option Consideration (as defined in no event later than twenty-four hours, after Section 5.2(d)) and the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.-------------- Merger Consideration (as defined in Section 5.2(b)). --------------
Appears in 3 contracts
Sources: Merger Agreement (Avery Dennison Corporation), Merger Agreement (Quad-C Inc), Merger Agreement (Stimsonite Corp)
The Offer. (a) Provided that nothing this Agreement shall not have terminated in accordance with its terms and provided that none of the events set forth in clauses (a)-(c) of Annex A shall have occurred and be continuing, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) a cash tender offer to purchase all of the issued and outstanding shares of the Company Common Stock for $7.20 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to the offer, the “Per Share Amount” and such offer, as it may be amended from time to time pursuant to the terms hereof, the “Offer”) no earlier than fourteen (14) days and no later than twenty (20) days after the date hereof (unless such date is not a business day, in which case the first business day after the date that would give rise is fourteen (14) days or twenty (20) days, as applicable, after the date hereof). Parent shall cause Merger Sub to a right accept for payment, and Merger Sub shall accept for payment, all shares of the Company Common Stock that have been validly tendered and not withdrawn pursuant to terminate the Offer as soon as practicable (and in any event not more than the fourth business day) following the Expiration Date (as defined below).
(b) The obligation of Merger Sub to accept for payment, purchase and pay for any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) shall only be subject to the satisfaction or waiver pursuant to the terms hereof of (i) the condition (the “Minimum Condition”) that at least that number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date, when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be equal to or greater than fifty and one tenth percent (50.1%) of the sum of the shares of Company Common Stock then outstanding on a fully-diluted basis (including as outstanding only options that are vested as of that date or may vest prior to the Merger Outside Date) and (ii) the other conditions set forth in Annex I, as promptly as practicable after A hereto (the date hereof, but conditions described in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to clauses (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, and (ii) provide are collectively referred to as the “Tender Offer Conditions”). Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (except as provided in Section 1.1(h)), changes the form of consideration payable in the Offer, imposes conditions to the Offer shall be as set forth in Annex I and that no other conditions shall applyaddition to the Tender Offer Conditions, (iii) provide that decreases the expiration date number of shares of Company Common Stock subject to the Offer, reduces the time period during which the Offer shall be midnight remain open, or modifies or amends the Offer in any manner adverse to the Company Shareholders.
(c) Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time, at the end of the later of (i) on the twentieth (20th) business day beginning with (and including) the date that the Offer is ten Business Days commenced (for this purpose calculated determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentor (ii) May 13, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable 2011 (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer ConditionsExpiration Date”), promptly after unless the later period of (x) the earliest date as of time for which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 1.1(d) or as required by Applicable Laws (ydefined in Section 9.3) or the earliest date as of which each interpretations of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), (in which case Merger Subsidiary event the term “Expiration Date” shall be required to extend mean the Offer beyond the End Date. Following expiration of latest time and date as the Offer, Merger Subsidiary shallas so extended, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”may expire).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Coleman Cable, Inc.), Merger Agreement (Technology Research Corp)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent and Merger Subsidiary Sub shall amend the Existing Offer to (i) increase reflect the terms and conditions of this Agreement, including the purchase price to of thirty seven dollars ($6.50 37.00) per Share share of Company Common Stock (including the “Offer Price”associated Rights), net to the seller in cash, without interest thereon and subject to any required withholding of Taxes (ii) provide that such price, or any higher price offered and paid by Merger Sub in its sole discretion in the conditions Offer, the “Offer Price”), and to set December 19, 2008 (the “Initial Expiration Date”), as the expiration date for the Offer. The obligation of Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall only be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the scheduled expiration date of the Offer (as it may be extended hereunder) and not withdrawn, a number of Shares shares of Company Common Stock that, together with the Shares shares of Company Common Stock then directly or indirectly owned by Parent and its AffiliatesParent, after giving effect to the consummation of the Offer, represents at least a majority of the total number voting power of all Fully Diluted Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable the Share Acceptance Date (as defined herein) (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to II (together with the terms and conditions of this AgreementMinimum Condition, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of . Merger Sub (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation on behalf of Merger Subsidiary (and of Parent to cause Merger SubsidiarySub) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive waive, in its sole discretion, in whole or in part, any of the Offer Conditions and to make any other changes change in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted that, unless otherwise provided by this Agreement or withheld previously approved by the Company in its sole discretion) writing, (Ai) the Minimum Condition may not be waived, (Bii) no change may be made that changes the form of consideration to be paidpaid pursuant to the Offer, decreases the price per Share Offer Price or the number of Shares shares of Company Common Stock sought in the Offer, amends or adds imposes conditions to the Offer Conditions in addition to those set forth in Annex II, or otherwise amends any other term of or modifies the Offer in any manner materially adverse to the stockholders holders of the CompanyCompany Common Stock, and (Ciii) the expiration date shall Offer may not be extended except as otherwise provided hereinset forth in this Section 1.01(a). Subject to the terms and conditions of this Agreement, and (D) Merger Subsidiary shall not terminate the Offer prior shall expire at 5:00 p.m., New York City time, on the Initial Expiration Date (such time, or such subsequent time to any scheduled which the expiration date except of the Offer is extended in accordance with the event that terms of this Agreement, the “Expiration Date”). Unless this Agreement is has been terminated pursuant to in accordance with Section 11.01. Notwithstanding the foregoing8.01, (x) Merger Subsidiary shall Sub (or at the request Parent on behalf of the Company, Parent shall cause Merger Subsidiary toSub) may extend the Offer and the Expiration Date without the consent of the Company (i) if at the scheduled or extended expiration date Expiration Date, any of the Offer any of the conditions to the Offer Conditions shall not be have been satisfied or waivedwaived in writing by Merger Sub (or Parent on behalf of Merger Sub), from until such time to time until as such conditions are satisfied or waived or (other than conditions which by their nature are to be satisfied on the Acceptance Dateii) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market SEC applicable to the Offer. In addition, unless the Agreement has been terminated in accordance with Section 8.01, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer and the Expiration Date from time to time in increments of up to fifteen (15) business days upon the Company’s prior written request if, as of the scheduled Expiration Date, any of the Offer Conditions set forth in paragraphs (a), (b), (c), (d) and (e) of Annex II shall not have been satisfied; provided provided, however, that in no event shall Parent or Merger Subsidiary Sub be required to extend the Offer or the Expiration Date beyond the End Outside Date. In addition, unless this Agreement has been terminated in accordance with Section 8.01, in the event that all of the Offer Conditions other than the Minimum Condition shall have been satisfied as of the scheduled Expiration Date, upon the Company’s prior written request Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer and the Expiration Date by up to an additional thirty (30) days, but not beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with Section 8.01, in the event that all of the Offer Conditions shall have been satisfied as of the scheduled Expiration Date and Parent or Merger Subsidiary is Sub fail to accept for payment and pay for shares of Company Common Stock validly tendered and not then permitted to terminate this Agreement withdrawn pursuant to the Offer in accordance with this Section 11.01(b)(i)1.01, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer and the Expiration Date from time to time in which case increments of up to fifteen (15) business days upon the Company’s written request; provided, however, that in no event shall Parent or Merger Subsidiary shall Sub be required to extend the Offer or the Expiration Date beyond the End Outside Date. Following expiration Merger Sub (or Parent on behalf of the Offer, Merger Subsidiary shall, if requested by the Company, or Sub) may, in its sole discretion, provide a subsequent offering period (a “Subsequent Offering Period”) in accordance with Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), if, as of the 1934 Actcommencement of such period, there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253 of the DGCL (as defined herein). Subject to the foregoing, including the requirements of Rule 14d-1114d-11 under the Exchange Act, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment and pay for, as promptly as practicable after the expiration of the Offerpracticable, all Shares shares of Company Common Stock (1including the associated Rights) (A) validly tendered and not withdrawn pursuant to the Offer and and/or (2B) validly tendered in the any Subsequent Offering Period Period. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of Company Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code (as defined herein), or any provision of state, local or foreign Laws relating to Taxes. To the date on extent that amounts are so withheld and paid over to the appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of shares of Company Common Stock in respect of which Shares are first accepted for payment, the “Acceptance Date”)such deduction and withholding were made by Merger Sub.
(cb) As promptly as reasonably practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file amend the 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 was originally filed on September 12, 2008 with the SEC an Securities and Exchange Commission (the “SEC”) to reflect the terms and conditions of this Agreement, and file such amendment to (the “Schedule TOTO Amendment”) with the SEC, which shall include a revised contain an amended and restated offer to purchase and form of letter of transmittal (or supplement to the offer to purchase to the extent permitted by Law) reflecting the terms and conditions set forth of this Agreement, and a revised form of the letter of transmittal and summary advertisement and other ancillary Offer documents and instruments, if any, in this Agreement respect of the Offer (together with the Schedule TO (including the Schedule TO Amendment), collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Sharesshares of Company Common Stock. The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary Sub and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub agree to take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Sharesshares of Company Common Stock, in each case as as, and to the extent required by by, applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselLaws. Parent and Merger Subsidiary Sub shall promptly provide the Company and its counsel with any comments or other communications, whether written or oral comments oral, that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive after the date hereof from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject those comments or other communications.
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock (and the associated Rights) that Merger Sub becomes obligated to purchase pursuant to the provisions hereof, promptly respond to such commentsOffer.
Appears in 2 contracts
Sources: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate --------- been terminated in accordance with Section 7.01, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, commence within the meaning of Rule 14d-2 under the Exchange Act (as hereinafter defined) the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following five business days after the initial public announcement of Parent's intention to commence the execution Offer. The Offer shall have a scheduled Expiration date 20 business days following commencement of the Offer (the "Initial Expiration Date"). Notwithstanding any contrary provision of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase if so requested by the purchase price Company at the direction of the Special Committee, will extend the Offer for up to $6.50 per Share (ten business days following in the “Offer Price”)event upon the Initial Expiration Date, net Merger Subsidiary shall not have accepted for payment Shares pursuant to the seller Offer as a result of one or more of the conditions set forth in cash, Annex A hereto not having been satisfied or waived by Merger Subsidiary and (ii) provide at its discretion may determine from time to time to extend the Offer for no more than an aggregate of ten business days following the later of the Initial Expiration Date and the first expiration date thereafter on which all of the conditions set forth in Annex A shall have been satisfied or waived, if applicable, provided, however, that in the event that Parent extends the Offer pursuant to this clause (ii) all of the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (deemed to have been irrevocably satisfied for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date all purposes of the Offer and shall not withdrawn, a number of Shares that, together with the Shares then owned be asserted by Parent as a basis for not consumating the Offer and (iii) may, from time to time at its Affiliatesdiscretion, represents a majority extend the Offer in increments of the total number of Shares outstanding on a fully-diluted basisup to ten business days each, without regard to whether any convertible if one or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver more of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to A shall not have been satisfied or waived. Parent shall not accept for payment any Shares tendered pursuant to the Offer unless there shall have been validly tendered and (y) not withdrawn prior to the earliest date as of which each expiration of the Offer Conditions has been satisfiedsuch number of Shares which, or waived constitutes at least a majority of the Shares not beneficially owned by Parent or Merger SubsidiarySubsidiary on a fully diluted basis (the "Minimum Condition"). In addition to the Minimum Condition, Merger Subsidiary shall (and the obligation of Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and to accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly for Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each satisfaction of the Offer Conditions.
(b) Merger Subsidiary conditions set forth in Annex A hereto. Parent expressly reserves the right to waive any of increase the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without Per Share Amount. Without the prior consent of the Company Special Committee, Parent will not (which consent may be granted or withheld by i) decrease the Company in its sole discretionPer Share Amount (ii) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought to be purchased in the Offer, amends or adds to Offer (iii) change the form of the consideration payable in the Offer Conditions (iv) amend or amends any other term of the Offer in any manner adverse add to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied set forth in Annex A hereto; or waived, from time to time until such (v) make any other change in the terms or conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend of the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable which is adverse to the Offer; provided that in holders of Shares. Under no event circumstances shall Merger Subsidiary be required to extend Parent waive the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End DateMinimum Condition. Following expiration of the Offer, Merger Subsidiary The Per Share Amount shall, if requested by the Companysubject to any applicable withholding of taxes, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject be net to the foregoingseller in cash, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. Following the satisfaction or waiver of the conditions to the Offer, Merger Subsidiary shall, and Parent shall cause it to, Merger Subsidiary to accept for payment and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentnot withdrawn, the “Acceptance Date”)as soon as it is permitted to do so pursuant to applicable law.
(cb) As promptly soon as reasonably practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, Parent shall file with the Securities and shall cause its Affiliates to, Exchange Commission (the "SEC")
(i) file with a Tender Offer Statement on Schedule 14D-1, including the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement exhibits thereto (collectively, together with any all amendments or and supplements thereto, the “Offer Documents”"Schedule 14D-1"), including the exhibits thereto with respect to the Offer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3, including the exhibits thereto (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the extent required Offer and the other transactions contemplated hereby (the "Transactions"). The Schedule 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by applicable U.S. federal securities lawsreference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and any related summary advertisement (the Schedule 14D-1, cause the Schedule 13E-3, the Offer Documents to be disseminated Purchase and such other documents, together with all supplements and amendments thereto, being referred to holders of Sharesherein collectively as the "Offer Documents"). Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed agree to correct promptly any information provided by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information for use in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information which shall have become false materially incorrect or misleading in any material respect. misleading, and Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts further agree to take all steps necessary to cause the Schedule TO 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaw (as defined hereinafter). The Company Company, the Special Committee and its their respective counsel shall be given a reasonable the opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before and any such document is filed amendments thereto prior to the filing thereof with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall provide the Company Company, the Special Committee and its their respective counsel with a copy of any written comments or telephonic notification of any oral comments Parent, Parent or Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such commentsthereof. Parent and its counsel shall provide the Company and the Special Committee and their respective counsel with a reasonable opportunity to participate in all communications with the SEC and its staff, andincluding any meetings and telephone conferences, subject relating to the provisions hereof, promptly respond to such commentsTransactions or this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Rexel Sa), Merger Agreement (Pinault Printemps Redoute Sa Et Al)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to been terminated in accordance with Article VII, then (i) not later than the first Business Day after execution of this Agreement, Parent and the Company shall issue a right to terminate the Offer pursuant to any public announcement of the conditions set forth in Annex Iexecution of this Agreement and (ii) Merger Sub shall, as promptly soon as practicable after the date hereofpracticable, but in no event later than three two Business Days following after the public announcement date of such announcement, amend (within the meaning of Rule 14d-2(a) of the execution of this Agreement, Merger Subsidiary shall amend Exchange Act) the Offer to (i) increase provide for the purchase price of all of the outstanding shares of Company Common Stock at the Price Per Share subject to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the reduction only for any applicable federal withholding taxes. The initial expiration date of the Offer shall be midnight (New York City time) on the tenth Business Day from and after the date that the Offer is ten Business Days (amended to provide for this purpose calculated the purchase of all of the outstanding shares of Company Common Stock in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreementterms hereof. The Offer shall be subject made pursuant to a Supplemental Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the condition that there shall be validly tendered in accordance with the Company and containing terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Sub to accept for payment, purchase and pay the Offer Price (without interest) for, each Share validly for shares of Company Common Stock tendered and not properly withdrawn pursuant to the Offer shall be subject only to (i) at least that number of shares of Company Common Stock equivalent to a majority of the satisfaction, or waiver by Parent or Merger Subsidiary, total issued and outstanding shares of each Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer (the "MINIMUM SHARES") being validly tendered and not withdrawn prior to the expiration of the Offer Conditions(the "MINIMUM CONDITION") and (ii) the satisfaction of the other conditions set forth in Annex A hereto, any of which conditions may be waived by Merger Sub in its sole discretion. 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) Merger Subsidiary expressly reserves Without the right to waive any prior written consent of the Offer Conditions and to make any other changes Company, neither Parent nor Merger Sub will (i) decrease the Price Per Share payable in the terms Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer (including the conditions set forth in Annex A hereto) or impose additional conditions to the Offer; provided that without , (iv) change the prior consent expiration date of the Company Offer or (which consent may be granted v) otherwise amend, add or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share waive any term or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term condition of the Offer in any manner adverse to the stockholders holders of the Companyshares of Company Common Stock; provided, (C) the expiration date shall not be extended except as otherwise provided hereinhowever, and (D) Merger Subsidiary shall not terminate the Offer prior to that if on any scheduled expiration date except in of the event that this Agreement is terminated pursuant Offer all conditions to Section 11.01. Notwithstanding the foregoingOffer have not been satisfied or waived, (x) Merger Subsidiary shall (or Sub may, and at the request of the CompanyCompany shall, Parent shall cause Merger Subsidiary to) from time to time, extend the Offer if at the scheduled or extended expiration date of the Offer any for up to 10 additional Business Days (but in no event shall Merger Sub be required to extend the expiration date of the conditions to Offer beyond the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Outside Date) or waived); and provided further that Merger Sub may, (yx) Merger Subsidiary shall without the consent of the Company, extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market SEC applicable to the OfferOffer and (y) extend the Offer if (1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the issued and outstanding shares of the Company Common Stock; provided provided, however, that in no event shall the extensions permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Parent and Merger Subsidiary be required Sub will, subject to extend the terms and conditions of this Agreement, use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver of all the conditions to the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)set forth in Annex A, in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the terms and conditions of the Offerthis Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment payment, purchase and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer as soon as permitted under applicable law, recognizing that the parties wish to close as expeditiously as possible after all Required Regulatory Approvals are obtained and (2) validly tendered in following the Subsequent Offering Period (the date expiration or termination of all applicable waiting periods under antitrust or other competition laws of any applicable jurisdictions. Parent shall provide, or cause to be provided, to Merger Sub, on which Shares are first accepted for paymenta timely basis, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement funds necessary to purchase any shares of the execution of this Agreement, Company Common Stock that Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment Sub becomes obligated to purchase pursuant to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsOffer.
Appears in 2 contracts
Sources: Merger Agreement (Vlsi Technology Inc), Merger Agreement (Vlsi Technology Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 of this Agreement and none of the events set forth in Annex I shall have occurred and be continuing, the Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than seven business days after the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all of the shares of Common Stock at the Offer Price. The obligations of the Purchaser to accept for payment and to pay for any shares of Common Stock validly tendered pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject to (i) there being validly tendered and not withdrawn prior to the final expiration of the Offer that would give rise number of shares of Common Stock which, together with the shares of Common Stock then beneficially owned by the Parent or the Purchaser, represents at least eighty percent (80%) of the shares of Common Stock outstanding on a Fully-Diluted Basis (the “Minimum Condition”) and (ii) the other conditions set forth in Annex I hereto. “Fully-Diluted Basis” shall mean, as of any date, the number of the shares of Common Stock issued and outstanding, together with the shares of Common Stock that may be issued by the Company pursuant to warrants, options, rights, or obligations outstanding at that date which have exercise or conversion prices on a per share basis at or below the Offer Price, whether or not vested or then exercisable (excluding the shares of Common Stock issuable pursuant to the Stock Option Agreement). Subject to the terms of the Offer and this Agreement, and the prior satisfaction or waiver by the Parent or the Purchaser of the Minimum Condition and the other conditions set forth in Annex I hereto as of any expiration date of the Offer, the Purchaser shall, in accordance with the terms of the Offer, consummate the Offer and accept for payment and pay for, and Parent shall cause the Purchaser to accept for payment and pay for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer promptly after the expiration of the Offer (subject to the applicable provisions of Rule 14d-11 under the Exchange Act, to the extent applicable). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) containing the terms set forth in this Agreement and having only the Minimum Condition and the other conditions set forth in Annex I hereto. Parent and Purchaser agree that the Offer to Purchase will provide a statement in all appropriate places therein to the effect that the Purchaser’s obligation to purchase shares of Common Stock pursuant to the Offer is not conditioned on any financing arrangements or subject to any financing condition. Unless extended in accordance with this Section 1.1(a), the Offer shall provide for an initial expiration date of twenty (20) business days (as defined in Rule 14d-1 promulgated under the Exchange Act, each a “Business Day”) following the commencement of the Offer (within the meaning of Rule 14d-2 promulgated under the Exchange Act) (the “Initial Expiration Date”). The Purchaser and the Parent agree that they shall not terminate or withdraw the Offer unless, at the Initial Expiration Date, the Minimum Condition shall not have been satisfied or the other conditions to the Offer described in Annex I have not been satisfied or earlier waived. The Purchaser expressly reserves the right to terminate waive or modify the terms of the Offer, except that, without the prior written consent of the Company (such consent to be authorized by the board of directors of the Company or a duly authorized committee thereof), neither the Parent nor the Purchaser shall (i) amend or waive satisfaction of the Minimum Condition, (ii) decrease the Offer pursuant Price, (iii) change the form of consideration payable in the Offer, (iv) decrease the number of shares of Common Stock sought in the Offer, (v) impose additional conditions to the Offer, (vi) amend any of the conditions set forth in Annex I, as promptly as practicable after I in any manner adverse to the date hereof, but in no event later than three Business Days following the public announcement holders of the execution shares of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfiedCommon Stock, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary tovii) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends amend any other term of the Offer in any a manner that is materially adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01shares of Common Stock. Notwithstanding the foregoing, the Purchaser may (but shall not be obligated to), without the consent of the Company extend the Offer (x) Merger Subsidiary shall (beyond the Initial Expiration Date from time to time, for such period or periods of time as the Purchaser reasonably believes are necessary to cause the conditions to be satisfied if, at the request of the CompanyInitial Expiration Date, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be have been satisfied or waivedwaived (in which event the term “Initial Expiration Date” shall mean the latest time and date at which the Offer, from time as so extended by the Purchaser, shall so expire); provided that, the Purchaser shall, upon the written request of the Company, extend the Offer for one or more periods not to time until exceed an aggregate of ten (10) Business Days if, as of any expiration date, all of the conditions set forth in clause (ii) of Annex I (other than subparagraph (c) thereof) are not satisfied, but such conditions are reasonably capable of being satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and in such period, (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation interpretation, or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market staff thereof applicable to the Offer and (z) on one or more occasions (all such occasions aggregating not more than twenty Business Days) beyond the latest expiration that would otherwise be permitted under clause (x) or (y) of this sentence, if, on such expiration date, all of the conditions to the Purchaser’s obligation to accept payment of the Common Stock are satisfied or earlier waived, but the number of shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, together with the Common Stock then owned by Parent and the Purchaser, represents less than ninety percent (90%) of the outstanding shares of Common Stock on a Fully-Diluted Basis; provided provided, however, that in no event shall Merger Subsidiary be required Purchaser’s decision to extend the Offer beyond in the End Date unless Parent case of this clause (z) shall constitute a waiver of the conditions set forth in clauses (d) and (f) (excluding any willful or Merger Subsidiary is not then permitted intentional breach of any material obligation of the Company) on Annex I and of its right to terminate this the Agreement pursuant to Section 11.01(b)(iunder Sections 8.1(b)(iii), (c)(iv), or (c)(v). In addition, subject to the provisions of Section 8.1(b)(iii) of this Agreement, if, on the Initial Expiration Date any of the events set forth in which case Merger Subsidiary subparagraph (c) of Annex I shall have occurred and be required to continuing and shall not have been waived by the Purchaser, then, in each such case, the Purchaser shall extend the Offer beyond for up to ten (10) Business Days. In the End Date. Following expiration event the Minimum Condition is satisfied and the Purchaser purchases the shares of Common Stock pursuant to the Offer, Merger Subsidiary shall, if requested by the Company, or Purchaser may, in its sole discretion, provide a “subsequent offering period period” in accordance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) in accordance with Rule 14d-11 of ). In addition, the 1934 Act. Subject Purchaser may increase the Offer Price (but not change any other condition to the foregoing, including the requirements of Rule 14d-11, Offer) and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to extend the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them law in connection with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesincrease, in each case as in its sole discretion and to without the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on consent of the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsCompany.
Appears in 2 contracts
Sources: Merger Agreement (Eagle Supply Group Inc), Merger Agreement (Gulfside Supply, Inc.)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof, (but in no event later than three Business Days following five business days after the public announcement of the execution hereof), Acquisition shall commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, Merger Subsidiary shall amend as amended, and the Offer to rules and regulations promulgated thereunder (icollectively, the "Exchange Act")) increase the purchase price to $6.50 per Share a tender offer (the “Offer Price”)"Offer") for all of the outstanding shares of Company Common Stock (including the Rights) at a price of $15.50 per share of Company Common Stock, net to the seller in cashcash (such price, (ii) provide that or any such higher price per share as may be paid in the conditions Offer, being referred to herein as the "Offer shall be as set forth in Annex I and that no other conditions shall applyPrice"), (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawnOffer, a that number of Shares that, together with the Shares then owned by Parent and its Affiliates, shares of Company Common Stock which represents at least a majority of the total number of Shares Company Common Stock outstanding on a fully-fully diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable basis (the “"Minimum Condition”") and to the other conditions set forth in Annex I A hereto, and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms ("fully diluted basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under warrants and outstanding employee stock options). The obligations of Acquisition to accept for payment each Share and to pay for any Company Common Stock validly tendered and not properly withdrawn pursuant on or prior to the expiration of the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall be made by Parent or Merger Subsidiary, means of each of an offer to purchase (the "Offer Conditions.
(bto Purchase") Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in containing the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company set forth in its sole discretion) (A) this Agreement, the Minimum Condition may and the other conditions set forth in Annex A hereto. Acquisition shall not be waived, (B) no change may be made that changes amend or waive the form of consideration to be paid, decreases Minimum Condition and shall not decrease the price per Share Offer Price or decrease the number of Shares sought in the Offershares of Company Common Stock sought, amends or adds to the Offer Conditions or amends amend any other term condition of the Offer in any manner adverse to the stockholders holders of the Company Common Stock without the prior written consent of the Company; provided, (C) however, that if on the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any initial scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any which shall be 20 business days after the date of the conditions Offer is commenced, the sole condition remaining unsatisfied is the failure of the waiting period under the HSR Act (as defined below) to have expired or been terminated, Acquisition shall extend the Offer shall not be satisfied or waived, expiration date from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on two business days after the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary waiting period under the HSR Act. Acquisition shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay forfor Company Common Stock tendered as soon as it is legally permitted to do so under applicable law; provided, as promptly as practicable after however, that if, immediately prior to the initial expiration date of the OfferOffer (as it may be extended), all Shares (1) validly the Company Common Stock tendered and not withdrawn pursuant to the Offer and (2) validly tendered in equals less than 90% of the Subsequent Offering Period (outstanding Company Common Stock, Acquisition may extend the Offer one time for a period not to exceed twenty business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date on which Shares are first accepted for payment, of the “Acceptance Date”)Offer.
(cb) As promptly soon as practicable after on the date hereofthe Offer is commenced, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, Parent and Acquisition shall cause its Affiliates to, (i) file with the SEC an amendment United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO14D-1"). The Schedule 14D-1 will include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement summary advertisement (collectively, together with any amendments or and supplements thereto, the “"Offer Documents”"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act and provisions of applicable federal securities laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (misleading, except that no representation is made by Parent and Merger subsidiary shall have no obligation or Acquisition with respect to any information furnished by the Company to Parent or Acquisition, in writing, expressly for inclusion in the Offer Documents. The information supplied by the Company to Parent or Acquisition, in writing, expressly for inclusion in the Offer Documents supplied and by Parent or Acquisition to the Company or its Representatives Company, in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates expressly for use inclusion in the Schedule TO 14D-9 (as hereinafter defined) will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Each of Parent and Acquisition will take all steps necessary to cause the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. Each of Parent and Acquisition, on the one hand, and the Company, on the other hand, will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Parent and Acquisition will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of the 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 the opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time 14D-1 before any such document it is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. In addition, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall Acquisition will provide the Company and its counsel in writing with any comments, whether written or oral comments oral, Parent, Merger Subsidiary Acquisition or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Ivex Packaging Corp /De/), Merger Agreement (Ivex Packaging Corp /De/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article VIII, as promptly as reasonably practicable after the date hereof, of this Agreement but in no event later than three Business Days following ten business days after the public announcement of the execution date of this Agreement, Merger Subsidiary Sub shall, and Parent shall amend the Offer cause Merger Sub to (iand the Company shall cooperate with Parent and Merger Sub to) increase commence (within the purchase price to $6.50 per Share meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Offer Price“ Exchange Act ”), net to ) the seller in cash, Offer.
(iib) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer ConditionsConditions ”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the time and date of acceptance for payment, the “ Acceptance Time ”) and promptly following the acceptance of Shares the shares of Company Common Stock for payment pursuant to the Offer Offer, pay (subject to any withholding of Tax pursuant to Section 1.01(i) or Section 2.02(g)) the Offer Price (net to the seller in cash, without interest) , for each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary Sub to (and of Parent to cause Merger SubsidiarySub to) to accept for payment, and pay the Offer Price (net to the seller in cash, without interest) , for, each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger SubsidiarySub if permitted hereunder, of each of the Offer Conditions.
(bc) Merger Subsidiary expressly reserves The Offer shall be made by means of an offer to purchase (the right “ Offer to waive any Purchase”) that contains the terms and conditions of the Offer Conditions as set forth in this Agreement, including the Minimum Tender Condition (as defined in Annex I) and the other conditions set forth in Annex I. Parent and Merger Sub expressly reserve the right (in their sole discretion) to (i) increase the Offer Price, (ii) waive, in whole or in part, any Offer Condition and (iii) make any other changes in the terms and conditions of or conditions to the Offer; provided that that, unless otherwise provided by Section 1.01(k), without the prior written consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent and Merger Sub shall cause Merger Subsidiary tonot (A) extend decrease the Offer if at Price, (B) change the scheduled form of consideration payable in the Offer, (C) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose additional conditions on the consummation of the Offer, (E) amend or extended expiration date modify any of the Offer Conditions in a manner that adversely affects any holder of shares of Company Common Stock, (F) change or waive the conditions Minimum Tender Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.01(e) of this Agreement or (H) otherwise amend or modify the Offer in a manner that adversely affects any holder of shares of Company Common Stock.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall not expire at midnight, New York time, on the date that is 20 business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date ”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the “ Expiration Date ”).
(e) The Offer shall be satisfied or waived, extended from time to time until such conditions are as follows:
(i) If on or prior to any then scheduled Expiration Date, any of the Offer Conditions shall not have been satisfied (other than conditions which by their nature are to be satisfied on at the Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for one or more successive periods of up to 10 business days each in order to permit the satisfaction of such conditions (subject to the right of Parent and Merger Sub to waive any condition (other than the Minimum Tender Condition) in accordance with this Agreement); provided that, such extension of the Offer does not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) December 31, 2012 (the “ Outside Date”);
(ii) If, within five business days prior to any then scheduled Expiration Date, the Company receives a Company Competing Proposal (or waived; a revision to a previously received Company Competing Proposal), then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer so that the Expiration Date does not occur until the later of (x) the date that is 5 business days following the date of the Company’s initial receipt of such Acquisition Proposal (or such revision to a previously received Acquisition Proposal) and (y) the first business day following the expiration of the applicable Notice Period related to such Acquisition Proposal (or such revision to a previously received Acquisition Proposal); provided, that such extension of the Offer shall not extend past the termination of this Agreement pursuant to Article VIII; provided, further, that Merger Subsidiary Sub shall only be required to provide for one such extension of the Offer pursuant to this Section 1.01(e)(ii) ; and
(iii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any period or periods required by any ruleapplicable Law, regulation, by interpretation or position of the U.S. Securities and Exchange Commission (the ““ SEC”) or its staff or by the Nasdaq Global Market New York Stock Exchange ( “NYSE”) applicable to the Offer; provided that in no event . Merger Sub shall Merger Subsidiary be required to extend not terminate the Offer beyond prior to any scheduled Expiration Date (including any rescheduled Expiration Date) without the End Date unless Parent or Merger Subsidiary is not then permitted to terminate prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. Nothing in this Section 11.01(b)(i), 1.01 shall affect any of the termination rights set forth in which case Merger Subsidiary shall be required Article VIII.
(f) If fewer than 90% of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to extend the Offer beyond the End Date. Following expiration of the Offer, Parent and Merger Subsidiary Sub may, and at the request of the Company shall, if requested and upon any such request by the Company, or may, in its sole discretionCompany Parent shall cause the Merger Sub to, provide a for one “subsequent offering period period” (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 of under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary shall, Sub shall (and Parent shall cause it Merger Sub to, ) promptly after any Company Common Stock is validly tendered during a “subsequent offering period” (or any extension thereof) accept for payment payment, and pay (subject to any withholding of Tax pursuant to Section 1.01(i) or Section 2.02(g)) the Offer Price net to the seller in cash, without interest, for, as each share of Company Common Stock that is validly tendered during such “subsequent offering period” or any extension thereof promptly as practicable after any such share of Company Common Stock is tendered during any such period. The Offer Documents will provide for the expiration possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.01(f).
(g) In the event that this Agreement is terminated pursuant to Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) (i) within one business day of such termination, terminate the Offer, all Shares (1ii) validly tendered and not withdrawn acquire any shares of Company Common Stock pursuant to the Offer and (2iii) validly cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered in shares of Company Common Stock to the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)registered holders thereof.
(ch) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of the execution commencement of this Agreementthe Offer, Parent and Merger Subsidiary shall, Sub shall prepare and shall cause its Affiliates to, (i) file with the SEC an amendment 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 will contain or incorporate by reference the Offer to Purchase, which shall include a revised offer to purchase the summary advertisement and form of the related letter of transmittal reflecting (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto and including exhibits thereto, the ““ Offer DocumentsDocuments ”), . Parent and (ii) to the extent required by applicable U.S. federal securities laws, Merger Sub shall as promptly as practicable cause the Offer Documents to be disseminated to holders of Sharesthe shares of Company Common Stock in accordance with and to the extent required by Rule 14d-4 under the Exchange Act. Each of Parent, Parent and Merger Subsidiary and the Company agrees Sub agree that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC by either Parent or Merger Sub to comply in all material respects with the 1934 Exchange Act and the rules and regulations thereunder and other applicable Law Laws. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub and Parent’s counsel all information concerning the Company, the Company’s Subsidiaries and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.01(h), including such information required by applicable Laws to be set forth in the Offer Documents. No filing of, when filed with or amendment or supplement to, the SEC Offer Documents will be made by Parent or Merger Sub, without providing the Company and on the date first published, sent or given its counsel a reasonable opportunity to review and comment thereon and giving due consideration to such comments. If at any time prior to the stockholders of Acceptance Time or during any “subsequent offering period” (or extension thereof) any information relating to the Company, shall Parent, Merger Sub, or any of their respective Affiliates, directors or officers should be discovered by any of the parties hereto, which should be set forth in an amendment or a supplement to the Offer Documents so that such documents would not contain include any untrue statement misstatement 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 misleading, the party that discovers such information shall promptly notify the other parties hereto, and Parent and Merger subsidiary Sub shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed file with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesan appropriate amendment or supplement describing such information and, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel Law, shall be given a reasonable opportunity disseminate such amendment or supplement to review and comment (A) on the Schedule TO and stockholders of the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselCompany. Parent and Merger Subsidiary Sub shall provide notify the Company and its counsel with promptly of the receipt of any comments, whether written or oral, from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Offer Documents or for additional information, and shall promptly supply the Company with copies of all correspondence (including a written summary of any oral comments communications) between Parent, Merger Subsidiary Sub or any of their respective Affiliates or counsel may receive from Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Offer Documents promptlyDocuments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(i) If any portion of the Offer Price is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock are registered, but in no event later than twenty-four hoursthe amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), after the receipt or such other person, or otherwise) payable on account of such commentsissuance or transfer to such other person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, andunless evidence satisfactory to Merger Sub of the payment of such Taxes, subject or exemption therefrom, is submitted. For the avoidance of doubt, Section 2.02(g) applies to payments made pursuant to this Section 1.01.
(j) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the provisions hereofOffer.
(k) If, promptly respond between the date of this Agreement and the Acceptance Time, the outstanding shares of Company Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization (but excluding any change that results from (i) the exercise of stock options or the conversion into Company Common Stock of other equity awards relating to the Company Common Stock or (ii) the grant of stock-based compensation (other than any such commentsgrants not made in accordance with the terms of this Agreement) to directors or employees of the Company or its Subsidiaries under the Company’s stock option or compensation plans or arrangements), the Offer Price shall be appropriately and proportionately adjusted to reflect such reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VII and none of the events set forth in ANNEX A hereto shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Ior be existing, Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after the date hereof, hereof (but in no event later than three Business Days following the tenth business day after the public announcement of the execution terms of this Agreement), Merger Subsidiary shall amend commence (within the Offer to (imeaning of Rule 14d-2(a) increase of the purchase price to $6.50 per Share Securities Exchange Act of 1934, as amended (the “Offer Price”"EXCHANGE ACT")), an offer (the "OFFER") to purchase any and all of the outstanding shares of Company Common Stock (and associated Rights) at a price of Twenty-One United States Dollars ($21.00) per share and associated Right (the "OFFER PRICE"), net to the seller in cash, (ii) provide that the conditions subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer shall will be as made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in Annex I and that no other conditions shall apply, (iii) provide that the this Agreement. The initial expiration date of the Offer shall be midnight (New York City time) on the twentieth business day from and after the date that the Offer is ten Business Days commenced (the "INITIAL EXPIRATION DATE"). The obligation of Purchaser to accept for this purpose calculated in accordance with Rule 14d-1(g)(3payment, purchase and pay for any shares of Company Common Stock (and associated Rights) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform tendered pursuant to the requirements of this Agreement. The Offer shall be subject subject, except as provided in Section 1.1(b), only to the satisfaction of (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority shares of Company Common Stock representing not less than fifty-one percent (51%) of the total number issued and outstanding shares of Shares outstanding Company Common Stock on a fully-diluted basisbasis (after giving effect to the conversion or exercise of all outstanding options, without regard warrants and other rights or securities convertible into shares of Company Common Stock) (excluding any shares of Company Common Stock held by the Company or any of its Subsidiaries) on the date such shares are purchased pursuant to whether any convertible or exchangeable securities are then vested the Offer have been validly tendered and exercisable not withdrawn prior to the expiration of the Offer (the “Minimum Condition”"MINIMUM CONDITION") and to (ii) the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this AgreementANNEX A hereto; PROVIDED, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”)HOWEVER, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary that Purchaser expressly reserves the right to waive any of the conditions to the Offer Conditions (other than the Minimum Condition) and to make any other changes change in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company Offer in its sole discretion, subject to Section 1.1(b).
(b) Without the prior written consent of the Company, neither Parent nor Purchaser will (Ai) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases decrease the price per Share or share of Company Common Stock payable in the Offer, (ii) decrease the number of Shares shares of Company Common Stock sought in the Offer, amends or adds (iii) change the form of consideration payable in the Offer, (iv) impose conditions to the Offer Conditions in addition to those set forth in ANNEX A, (v) except as provided below or amends required by any other rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) otherwise amend or change any term or condition of the Offer in any a manner adverse to the stockholders holders of shares of Company Common Stock. Notwithstanding anything in this Agreement to the contrary, without the consent of the Company, (C) Purchaser shall have the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior right to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if beyond the Initial Expiration Date in the following events: (i) from time to time if, at the scheduled Initial Expiration Date (or extended expiration date of the Offer Offer, if applicable), any of the conditions to the Offer (other than the Minimum Condition to which this clause does not apply) shall not be have been satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the OfferOffer or any period required by applicable law; provided (iii) if all conditions to the Offer (other than the Minimum Condition) are satisfied or waived, but the Minimum Condition has not been satisfied, for one or more periods not to exceed thirty (30) business days (for all such extensions); or (iv) if all of the conditions to the Offer are satisfied or waived but the number of shares of Company Common Stock validly tendered and not withdrawn is less than ninety percent (90%) of the then outstanding number of shares of Company Common Stock on a fully diluted basis, for an aggregate period not to exceed twenty (20) business days (for all such extensions), PROVIDED that Purchaser shall accept and promptly pay for all securities tendered prior to the date of such extension and shall otherwise meet the requirements of Rule 14d-11 under the Exchange Act in no event connection with each such extension. In addition, Parent and Purchaser agree that Purchaser shall Merger Subsidiary be required from time to time extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, (i) if at the Initial Expiration Date (or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 any extended expiration date of the 1934 Act. Subject Offer, if applicable), any of the conditions to the foregoingOffer other than (or in addition to) the Minimum Condition shall not have been waived or satisfied, including until (taking into account all such extensions) the requirements earlier of Rule 14d-11June 30, 2000 or such earlier date upon which any such condition (other than the Minimum Condition) shall not be reasonably capable of being satisfied prior to June 30, 2000; or (ii) if at the Initial Expiration Date (or any extended expiration date of the Offer, if applicable), all of the conditions to the Offer other than the Minimum Condition shall have been waived or satisfied and upon the terms Minimum Condition shall not have been satisfied, until the earlier of ten (10) business days after such expiration date or June 30, 2000. Upon the prior satisfaction or waiver of all the conditions to the Offer, and subject to the terms and conditions of the Offerthis Agreement, Merger Subsidiary shallPurchaser will, and Parent shall will cause it Purchaser to, accept for payment payment, purchase and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in as soon as reasonably practicable after the Subsequent Offering Period (expiration of the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(c) As promptly soon as reasonably practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, Parent and Purchaser shall file or cause its Affiliates to, (i) file to be filed with the SEC an amendment to the a Tender Offer Statement on Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement TO (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii"SCHEDULE TO") with respect to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of SharesOffer. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the The Schedule TO will comply as to form and the other Offer Documents filed by any of them with the SEC to comply content in all material respects with the 1934 Act applicable provisions of the federal securities laws and will contain the offer to purchase and form of the related letter of transmittal (such Schedule TO and such documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Parent and the rules and regulations thereunder and other applicable Law and that Company each agrees to correct promptly any information provided by it for use in the Offer Documents, when filed with the SEC Documents if and on the date first published, sent or given to the stockholders of the Company, extent that such information shall not contain any untrue statement of a material fact have become false or omit to state misleading in any material fact required respect and to be stated therein supplement the information provided by it specifically for use in the Schedule TO or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that misleading. Parent and Merger subsidiary shall have no obligation with respect Purchaser agree to any information in take all steps necessary to cause the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock, in each case case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall Purchaser agree to provide to the Company and its counsel with any written comments or oral comments other communications which Parent, Merger Subsidiary Purchaser or their respective Affiliates or counsel may receive from the Staff of the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsthereof.
Appears in 2 contracts
Sources: Merger Agreement (International Paper Co /New/), Merger Agreement (Shorewood Packaging Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Article IX, Parent shall, or shall cause Offer Sub to, commence an offer to acquire all outstanding shares of SRH Common Stock not owned, directly or indirectly, by the Company at a price of $72.00 per share of SRH Common Stock. Parent shall, and shall cause Offer Sub to, accept for payment all shares of SRH Common Stock tendered to Parent or Offer Sub at, or as soon as possible following, the Effective Time; provided, that would give rise Parent or Offer Sub shall not be required to a right make payment for, or mail checks with respect to, tendered shares of SRH Common Stock until the seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event earlier than January 10, 2000. The obligation of Parent or Offer Sub to terminate consummate the Offer and to accept for payment any shares of SRH Common Stock tendered pursuant thereto shall be subject only to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of Article VIII to this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) Agreement and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver concurrent consummation of the conditions set forth in Annex I Merger (collectively, the “"Offer Conditions”"), promptly after which are for the later sole benefit of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Parent and Offer Sub and (y) the earliest date as of which each may be asserted by Parent or Offer Sub regardless of the Offer Conditions has been satisfiedcircumstances giving rise to any such condition, or waived by Parent or Merger SubsidiaryOffer Sub in whole or in part at any time and from time to time prior to acceptance of shares for payment in its sole discretion; provided, Merger Subsidiary that in no event shall Parent or Offer Sub purchase (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and or accept for payment each Share validly tendered and not properly withdrawn purchase) any shares of SRH Common Stock pursuant to the Offer if the Merger shall not have occurred or concurrently occur. The Company and promptly following SRH agree that no shares of SRH Common Stock held by the acceptance Company, SRH or any of Shares for payment pursuant their respective Subsidiaries will be tendered to the Parent or Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn Sub pursuant to the Offer. The obligation of Merger Subsidiary (Parent and of Parent to cause Merger Subsidiary) to accept for paymentOffer Sub will not, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior written consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waivedSRH, (Bi) no decrease or change may be made that changes the form of the consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends or adds (ii) decrease the number of shares of SRH Common Stock sought pursuant to the Offer, (iii) impose additional conditions to the Offer or change the Offer Conditions (provided, that Parent or amends Investor in its sole discretion may waive any such conditions and, in connection therewith, substitute a less restrictive condition) or (iv) make any other term change in the terms or conditions of the Offer in any manner which is materially adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01shares of SRH Common Stock. Notwithstanding the foregoing, Parent and SRH may, without the consent of the Company or SRH, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from time to time until such time as all conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and , (yxi) Merger Subsidiary shall extend the Offer for any period required by any statute, rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market any Governmental Authority applicable to the Offer; provided that in no event shall Merger Subsidiary be required to , and (xii) extend the Offer for any reason on one or more occasions for an aggregate of not more than 15 business days beyond the End Date unless Parent or Merger Subsidiary is not then latest expiration date that would otherwise be permitted to terminate under clauses (x) and (xi) of this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Actsentence. Subject to the foregoing, including the requirements of Rule 14d-11, Offer Conditions and upon the terms and subject to the conditions of the Offerthis Agreement, Merger Subsidiary Parent shall, and Parent shall cause it Offer Sub to, accept for payment and pay for, as promptly as practicable after the expiration all shares of the Offer, all Shares (1) SRH Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as soon as practicable after the date hereofexpiration of the Offer; provided, that Parent or Offer Sub shall not be required to make payment for, or mail checks with respect to, tendered shares of SRH Common Stock until the seventh calendar day following the Effective Time, but if the Effective Time occurs after December 17, 1999 in no event later earlier than three Business Days January 10, 2000.
(E) The following the public announcement Section 7.15 shall be added to Article VII of the execution of this Original Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including as promptly as practicable (but in no event later than ten business days after the prior date of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock validly tendered pursuant to the Offer are subject to the satisfaction or waiver of the conditions set forth in Annex I Exhibit A (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation initial expiration date of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to at the satisfactiontime that is one minute following 11:59 p.m., or waiver by Parent or Merger SubsidiaryNew York City time, of each on the date that is twenty 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 Conditions.
is first commenced (b) within the meaning of Rule 14d-2 promulgated under the Exchange Act). Merger Subsidiary Sub expressly reserves the right to waive any of the Offer Conditions and to make any other changes in Condition or modify the terms of or conditions 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; provided that without , (ii) reduce the prior consent of the Company Offer Price, (which consent may be granted iii) waive, amend or withheld by the Company in its sole discretion) (A) modify the Minimum Tender Condition may not be waivedor the Termination Condition, (Biv) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds add to the Offer Conditions or amends impose any other term conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock in their capacity as such, (v) change the form or terms of consideration payable in the Offer, or (vi) otherwise amend, modify or supplement any of the terms of the Offer in any manner adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except Company Common Stock in their capacity as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01such. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the CompanySub shall, and Parent shall cause Merger Subsidiary Sub to, (A) extend the Offer 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 or extended expiration date of the Offer any of the conditions to Offer Conditions (other than the Offer Minimum Tender Condition) shall not be have been satisfied or waived, from time to time until such time as such conditions are shall have been satisfied or waived (other than conditions which by their nature are to be satisfied on irrespective of whether the Acceptance DateMinimum Tender Condition has been satisfied) or waived; and (yB) Merger Subsidiary shall extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the U.S. Securities and Exchange Commission SEC or the staff thereof or the NASDAQ Capital Market (the “SECNasdaq”) or the Nasdaq Global Market applicable to the Offer; provided that in no event Merger Sub shall Merger Subsidiary not be required to extend the Offer beyond the End Date unless Outside Date. In addition, 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 shall, and Parent shall cause Merger Sub to, extend the Offer at the request of the Company for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company); provided that Merger Subsidiary is Sub shall not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Outside Date. Following expiration Notwithstanding anything to the contrary herein, if, as of the Offerscheduled expiration date, all of the Offer Conditions are satisfied or waived, but there shall not have been validly tendered and not withdrawn pursuant to the Offer that number of shares of Company Common Stock necessary to permit the Merger to be effected without a meeting of the Company’s stockholders, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, Sub may provide a “subsequent offering period (“Subsequent Offering Period”) period” in accordance with Rule 14d-11 of under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment payment, and 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 as promptly as practicable after the expiration of the OfferOffer and, all Shares (1) validly tendered and not withdrawn pursuant to in any event, no more than two business days after the Offer and (2) validly Closing Date. The date on which Merger Sub first accepts for payment the shares of Company Common Stock tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, Offer is referred to as the “Acceptance Offer Closing Date”. 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 8.01. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) shall affect any termination rights set forth in Section 8.01.
(cb) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which shall include a revised or incorporate by reference an offer to purchase and form of a related letter of transmittal reflecting and summary advertisement containing the terms and conditions set forth in this Agreement and Exhibit A (collectivelysuch Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause disseminate the Offer Documents to be disseminated to the holders of SharesCompany Common Stock. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and each of Parent and Merger Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents, as so corrected amended or supplemented, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to the holders of SharesCompany Common Stock, in each case as and to the extent required by applicable U.S. federal Federal securities lawsLaws. The Parent and Merger Sub shall provide the Company and its counsel with copies of any written comments, and shall be given reasonably 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 (x) provide the Company and its counsel a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with or response (including the SEC after the date hereof proposed final version thereof), and (By) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and or its counsel. .
(c) Parent and Merger Subsidiary shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Parent, the Company and its counsel with any written or oral comments Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer, such amounts as Parent, the Company or Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC 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 Agreement as having been paid to the Person in respect of whom such deduction or withholding was made.
(e) The Offer Documents promptlyPrice shall be adjusted appropriately to reflect the effect of any stock split, but in no event later than twenty-four hoursreverse 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 receipt date of such comments, and, subject this Agreement and prior to the provisions hereofOffer Closing Date, promptly respond 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 commentsaction.
Appears in 2 contracts
Sources: Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Celator Pharmaceuticals Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary Sub shall amend (and Parent shall cause Merger Sub to) commence (within the Offer to (i) increase meaning of Rule 14d-2 under the purchase price to $6.50 per Share Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Offer PriceExchange Act”), net ) the Offer.
(b) The obligation of Merger Sub to the seller in cash, (ii) provide that the conditions accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, subject to: (iiii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be being validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a validly withdrawn prior to any then scheduled Expiration Time that number of Shares thatshares of Company Common Stock which, together with the Shares then shares beneficially owned by Parent and its Affiliatesor Merger Sub (if any), represents the greater of (A) a majority of the total number of shares of Company Common Stock outstanding without giving effect to the Top-Up Shares and (B) one share more than ninety percent (90%) of the total number of shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares, calculated on a fully-fully diluted basisbasis (which assumes the conversion or exercise of all Company Stock Options and other derivative securities and the vesting and/or exercise of all other Company Stock Awards, without regard to whether any convertible in each case, regardless of the conversion or exchangeable securities are then vested exercise price, the vesting schedule or other terms and exercisable conditions thereof) (the “Minimum Condition”); and (ii) and to the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I and to no other conditions. Subject to Exhibit A (together with the terms and conditions of this AgreementMinimum Condition, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant . Subject to the Offer and (y) the earliest date as of which each prior satisfaction of the Offer Conditions has been satisfiedMinimum Condition and the satisfaction, or waived waiver by Parent or Merger SubsidiarySub, of the other Offer Conditions, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer and as promptly following as practicable after the acceptance of Shares for payment pursuant Expiration Time; provided that if, at or prior to any Expiration Time, Parent delivers a notice to the Offer pay Company representing that the full amount of the Debt Financing has not been funded and would not be available to be funded at the consummation of the Offer if such Expiration Time were not extended, then Purchaser may (on one occasion only) extend the Offer and such Expiration Time for up to ten (10) Business Days in its sole discretion. The Offer Price (without interest) for payable in respect of each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by Parent or Merger Subsidiary, means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions.
(b) . Parent and Merger Subsidiary Sub expressly reserves reserve the right (in their sole discretion) to waive waive, in whole or in part, any of Offer Condition, to increase the Offer Conditions and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement or conditions as previously approved in writing by the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer; provided that without , (ii) reduce the prior consent of the Company Offer Price, (which consent may be granted iii) change, modify or withheld by the Company in its sole discretion) (A) waive the Minimum Condition may not be waivedCondition, (Biv) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds add to the conditions set forth in Exhibit A or modify or change any Offer Conditions or amends any other term of the Offer Condition in a manner adverse in any manner adverse material respect to the stockholders any shareholders of the Company, (Cv) the expiration date shall not be extended except as otherwise provided hereinin this Section 1.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse in any material respect to any shareholders of the Company.
(d) The Offer shall expire at midnight (Minneapolis time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer, determined as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act (the “Initial Expiration Time”), or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the contrary, and without limiting Parent’s or Merger Sub’s obligations under this Section 1.01(e), Merger Sub (Di) may, in its sole discretion, without consent of the Company, extend the Offer on one or more occasions for any period, if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived, until such time as such condition or conditions are satisfied or waived and (ii) shall extend the Offer for any period required by applicable Law, any interpretation or position of the Securities and Exchange Commission (the “SEC”), the staff thereof or the NASDAQ Capital Market (“NASDAQ”) applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under any applicable antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub be required to extend the Offer (A) beyond January 31, 2018 (the “Outside Date”) or (B) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII.
(f) On the terms and subject to the conditions of 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 3.05) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.01 shall affect any termination rights in ARTICLE VIII.
(g) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 11.01ARTICLE VIII. Notwithstanding If the foregoingOffer is terminated or withdrawn by Merger Sub, (x) Merger Subsidiary shall (or at this Agreement is terminated pursuant to ARTICLE VIII, prior to the request acceptance for payment of the CompanyCompany Common Stock tendered in the Offer, Parent Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Subsidiary toSub to return, all tendered Company Common Stock to the registered holders thereof.
(h) extend As soon as practicable on the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, modifications, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or amendments, modifications and supplements thereto, the “Offer Documents”), . The Company agrees to promptly furnish to Parent and (ii) to Merger Sub all information concerning the extent Company required by applicable U.S. federal securities laws, the Exchange Act to be set forth in the Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders shareholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments, modifications or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before or response (including, if applicable, participation in the formulation of any such document is filed with the SEC after the date hereof and (Bwritten response(s) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from of the SEC with respect to the Offer Documents promptlyDocuments), but in no event later than twenty-four hours, after the receipt of such comments, and, subject and Parent and Merger Sub shall give reasonable consideration to the provisions hereof, promptly respond to any such comments.
(i) Parent and Merger Sub shall, on the same date that the Offer is commenced, file with the Commissioner of Commerce of the State of Minnesota and deliver to the Company a registration statement relating to the Offer required to be filed pursuant to Chapter 80B of Minnesota Statutes and will disseminate to the shareholders of the Company the information specified in Chapter 80B.03 of the Minnesota Statutes. Parent and Merger Sub shall promptly provide copies to the Company of any and all correspondence between them and the Minnesota Department of Commerce with respect to compliance with Chapter 80B, and shall promptly respond as soon as possible to address any such comments or actions required by the Minnesota Department of Commerce to consummate the transactions contemplated by this Agreement.
(j) Subject to the prior satisfaction, or waiver by Parent or Merger Sub, of the Offer Conditions, Parent shall provide or cause to be provided to Merger Sub the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(k) For purposes of this Agreement and the Offer, unless mutually agreed by Parent and the Company, any shares of Company Common Stock subject to notices of guaranteed delivery shall be deemed not to be validly tendered into the Offer (including for purposes of determining whether the Minimum Condition has been satisfied) unless and until the shares of Company Common Stock underlying such notices of guaranteed delivery are delivered to or on behalf of Merger Sub.
Appears in 2 contracts
Sources: Merger Agreement (MGC Parent LLC), Merger Agreement (MGC DIAGNOSTICS Corp)
The Offer. (a) (i) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8.1 and that would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Paragraph (2) of Annex II hereto shall exist or have occurred and be continuing, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of fifth business day after the execution of this Agreementdate hereof, Merger Subsidiary Sub shall, and Parent shall amend 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 to (i) increase purchase all of the purchase price to $6.50 per Share (outstanding shares of Company Common Stock at the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date . The obligations of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentMerger Sub to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform to the requirements cause Merger Sub to, accept for payment and pay for shares of this Agreement. The Offer shall be subject to the condition that there shall be Company Common Stock validly tendered in accordance with the terms of the Offer prior pursuant to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard subsequently withdrawn shall be subject only to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I hereto (the “Offer Conditions”), promptly after the later of (x) the earliest . The date as of on which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to Sub “commences” the Offer and (ywithin the meaning of Rule 14d-2 under the Exchange Act) is hereafter referred to as the earliest date as of which each of “Offer Commencement Date”. To the Offer Conditions has been satisfied, or waived extent permitted by Parent or Merger Subsidiaryapplicable Law, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Sub expressly reserves the right to waive any of the Offer Conditions and to make any other changes change in the terms of or conditions to the Offer; provided , except that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) Company, Merger Sub shall not (A) decrease the Minimum Condition may not be waivedOffer Price or change the form of the consideration payable in the Offer, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or decrease the number or percentage of Shares shares of Company Common Stock sought in pursuant to the Offer, amends (C) amend or adds waive the Minimum Tender Condition (as defined in Annex I), (D) impose any conditions to the Offer Conditions in addition to the conditions set forth on Annex I, (E) amend or amends any other term of modify the Offer in any a manner adverse to the stockholders holders of the Companyshares of Company Common Stock taken as a whole, or (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary toF) extend the Offer if at Expiration Date (as defined in Annex I) except as required or permitted by this Section 1.1(a). The Expiration Date shall be the scheduled or extended expiration date of 20th Business Day next following the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied Commencement Date (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, calculated as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Rule 14d-1(a) (collectively, together with any amendments or supplements thereto, 3) under the “Offer Documents”Exchange Act), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Plethico Pharmaceuticals Ltd.), Merger Agreement (Nutra Acquisition CO Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 7.01, as promptly as practicable after the date hereof, but in no event later than three ten (10) Business Days following the public announcement of the execution date of this Agreement, Merger Subsidiary Sub shall amend (and Parent shall cause Merger Sub to) commence, within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act, the Offer to purchase all of the outstanding shares of Company Common Stock (other than Excluded Shares) following at a price per share equal to the filing Offer Price. The consummation of such amendmentthe Offer, and (iv) make such other amendments as are necessary or appropriate the obligation of Merger Sub to conform accept for payment and pay for any shares of Company Common Stock tendered pursuant to the requirements of this Agreement. The Offer Offer, shall be subject to the condition that only to: (i) there shall be being validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a properly withdrawn prior to the Expiration Date that number of Shares thatshares of Company Common Stock which, together with the Shares number of shares of Company Common Stock (if any) then owned by Parent and Parent, Merger Sub or its Affiliatesother Subsidiaries, represents a majority of the total number of Shares outstanding shares of Company Common Stock entitled to vote on a fully-diluted basisthe matter (collectively, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the “Termination Condition”); and to (iii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”), promptly after . For purposes of determining whether the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions Minimum Condition has been satisfied, any shares of Company Common Stock tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have actually been delivered pursuant to such procedures.
(b) Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waived waiver by Parent or Merger SubsidiarySub, of the other Offer Conditions, in each case, as of the Expiration Date, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and on or promptly following (within the acceptance meaning of Shares for payment pursuant Section 14e-1(c) under the Exchange Act) after the applicable Expiration Date. Subject to the Offer pay Section 2.10(h), the Offer Price (without interest) for payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation share of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest.
(c) The Offer shall be made by Parent or Merger Subsidiary, means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Offer Conditions.
(b) . Merger Subsidiary Sub expressly reserves the right to waive any of the Offer Conditions and to make any other changes change in the terms of or conditions to the Offer; provided provided, however, that without the prior consent of the Company (which consent may be granted or withheld unless previously approved by the Company in its sole discretionwriting, Parent and Merger Sub shall not: (i) (A) decrease the Minimum Condition may not be waivedOffer Price other than pursuant to Section 2.09(e), (Bii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (iii) change the number of shares of Company Common Stock to be purchased in the Offer, (iv) waive the Minimum Condition, the Termination Condition or adds the other Offer Conditions set forth in clause (b) or clause (c)(1) of Annex I, (v) add any condition to the Offer, (vi) extend the expiration of the Offer except as required or permitted by this Section 2.01, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act, (viii) amend or modify any of the Offer Conditions or amends (ix) modify, supplement or amend any other term or condition of the Offer in any a manner adverse to the stockholders holders of Company Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of the CompanyOffer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) Unless this Agreement has been terminated in accordance with its terms, if as of any then scheduled Expiration Date, (Ci) any Offer Condition (other than the expiration date shall Minimum Condition) has not be extended except as otherwise provided hereinbeen satisfied or, and (D) to the extent waivable by Parent or Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated Sub pursuant to Section 11.01. Notwithstanding the foregoingthis Agreement, (x) waived by Parent or Merger Subsidiary Sub, Merger Sub shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Sub to) extend the Offer for successive periods of up to ten (10) Business Days each (or such longer period of up to twenty (20) Business Days if at Parent so desires and the scheduled Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its reasonable discretion in order to permit the satisfaction of any such Offer Conditions; provided, however, that (x) in no event shall Parent or extended expiration date Merger Sub extend the Offer for a period that expires more than three (3) Business Days following the end of the Offer any of Marketing Period without the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; Company’s prior written consent and (y) Merger Subsidiary Sub shall be required to extend the Offer pursuant to this clause (i) only if in the reasonable discretion of Parent any such Offer Condition is capable of being satisfied on or prior to the End Date, (ii) all of the Offer Conditions (other than the Minimum Condition) have been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for an extension period of ten (10) Business Days (or such longer period of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), in order to permit the satisfaction of the Minimum Condition; provided, however, that (x) in no event shall Parent or Merger Sub extend the Offer for a period that expires more than three (3) Business Days following the end of the Marketing Period without the Company’s prior written consent and (y) Merger Sub shall not be required to extend the Offer pursuant to this clause (ii) on more than two (2) occasions, but may, in its sole and absolute discretion, elect to do so, and (iii) Merger Sub shall extend the Offer for any the minimum period or periods required by any ruleapplicable Law or applicable rules, regulationregulations, interpretation interpretations or position positions of the U.S. Securities and Exchange Commission (the “SEC”) SEC or its staff or the Nasdaq NASDAQ Global Market applicable to the OfferMarket; provided provided, however, that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall Sub (x) be required to extend the Offer beyond the End Date, unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 7.01(b)(i), or (y) extend the Offer beyond the End Date or more than three (3) Business Days following the end of the Marketing Period without the Company’s prior written consent. Following expiration Notwithstanding the foregoing, nothing in this Section 2.01(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Parties to terminate this Agreement pursuant to Section 7.01.
(f) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Section 7.01. If this Agreement is terminated pursuant to Section 7.01, Merger Sub shall (and Parent shall cause Merger Sub to) promptly terminate the Offer and shall not acquire the shares of Company Common Stock pursuant thereto. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, 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 that have not then been purchased in the Offer to the registered holders thereof.
(g) As soon as practicable on the date of the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer, Parent and Merger Subsidiary Sub shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).:
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”);
(ii) deliver a copy of the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements including all exhibits thereto, to the “Offer Documents”)Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and (ii) mail by means of first class mail or other acceptable means a copy of the Schedule TO, to the extent required by applicable U.S. federal securities laws, NASDAQ Global Market in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iv) cause the Offer Documents to be disseminated to all holders of Shares. Each shares of ParentCompany Common Stock as and to the extent required by all applicable Laws, including the Exchange Act; and
(v) cause the notice referred to in Section 3-106.1(e)(1) of the MGCL (the “Maryland Short Form Merger Subsidiary Notice”) to be disseminated to all holders of shares of Company Common Stock with the Offer Documents.
(h) The Schedule TO shall include as exhibits the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of guaranteed delivery (the Schedule TO and the Company agrees that they documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”) and the Maryland Short Form Merger Notice. Parent and Merger Sub shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply as to form in all material respects with the 1934 Act requirements of applicable Law. Subject to Section 5.02, the Company consents to the inclusion of a description of the Company Recommendation in the Schedule TO and the rules and regulations thereunder and other applicable Law and that the Offer Documents. The Company shall furnish in writing to Parent and Merger Sub all information concerning the Company and its Subsidiaries that is required by applicable Laws or reasonably requested by Parent or Merger Sub to be included in the Schedule TO or the Offer Documents so as to enable Parent and Merger Sub to comply with their obligations under this Section 2.01(h). Parent and Merger Sub, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, shall not contain any untrue statement of a material fact or omit on the other hand, agree 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates respective Representatives for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shallrespect or as otherwise required by applicable Law, and shall cause its Affiliates to, use their respective reasonable best efforts Parent and Merger Sub agree to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by all applicable U.S. federal securities lawsLaws, including the Exchange Act. The Company and its (and the Special Committee’s) legal counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company and its counsel(and the Special Committee’s) legal counsel (it being understood that the Company and its (and the Special Committee’s) legal counsel shall provide any comments thereon as soon as reasonably practicable). In addition, Parent and Merger Subsidiary Sub shall provide the Company and its (and the Special Committee’s) legal counsel with copies of any written or comments, and shall inform them of any oral comments comments, that Parent, Merger Subsidiary Sub or their respective Affiliates or legal counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly, but promptly (and in no any event later than twenty-four within 48 hours, ) after the receipt of such comments, and any written or oral responses thereto. The Company and its (and the Special Committee’s) legal counsel shall be given a reasonable opportunity to review any proposed written or oral responses to the Schedule TO and Offer Documents and Parent and Merger Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its (and the Special Committee’s) legal counsel and, subject to the provisions hereofextent practicable, promptly respond to such commentsparticipate in any substantive telephonic communications with the staff of the SEC related thereto.
Appears in 2 contracts
Sources: Merger Agreement (Telecommunication Systems Inc /Fa/), Merger Agreement (Comtech Telecommunications Corp /De/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 7.1 hereof, Merger Sub shall, as promptly as practicable after the date hereof (and Merger Sub shall use commercially reasonable efforts to, within ten (10) business days after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to commence the seller in cash, (ii) provide that the conditions Offer. Each Share accepted by Merger Sub pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, exchanged for the right to receive a fraction of share of Parent Common Stock (iiithe "EXCHANGE RATIO") provide that the equal to 0.79. The initial expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under twentieth business day following commencement of the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this AgreementOffer. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and not withdrawn, withdrawn a number of Shares thatshares of Company Common Stock which, together with the Shares shares of Company Common Stock then owned by Parent and its AffiliatesMerger Sub (if any), represents at least a majority of the sum of (i) the total number of shares of Company Common Stock outstanding immediately prior to the expiration of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)), and (ii) a number of shares of Company Common Stock determined by Parent up to a maximum of the total number of Shares outstanding on a fully-diluted basisshares of Company Common Stock issuable upon the exercise or conversion of all options, without regard to whether any warrants, rights and convertible or exchangeable securities are then (if any) that will be vested and exercisable by the Outside Date (as defined in Section 7.1(b)(ii) hereof) (the “Minimum Condition”number of shares determined by adding the shares referred to in clause "(i)" and clause "(ii)" of this sentence being hereinafter referred to as the "FULLY DILUTED SHARES") (and the condition previously referred to in this sentence being referred to as the "MINIMUM CONDITION") and to the other conditions set forth in Annex I hereto. Parent and Merger Sub expressly reserve the right to waive the conditions to the Offer and to make any change in the terms or conditions of the Offer; PROVIDED, HOWEVER, that without the prior written consent of the Company, no other conditions. Subject change may be made which decreases the number of shares of Company Common Stock sought in the Offer, changes the form or amount of consideration to be paid, imposes conditions to the terms and conditions of this AgreementOffer in addition to those set forth in Annex I, including changes or waives the prior satisfaction Minimum Condition or waiver any of the conditions set forth in Annex I clauses (the “Offer Conditions”2), promptly after (4), (5) or (7) of Annex I, extends the later Offer (except as set forth in the following two sentences), or makes any other change to any of the terms and conditions to the Offer which is adverse to the holders of shares of Company Common Stock. Subject to the terms of the Offer and this Agreement and the satisfaction (xor waiver to the extent permitted by this Agreement) of the earliest date as of which conditions to the Offer, Merger Subsidiary is permitted under applicable Law to Sub shall accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as all shares of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and promptly following as soon as practicable after the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended applicable expiration date of the Offer (as it may be extended in accordance with the requirements of this Section 1.1(a)) and shall pay for all such shares of Company Common Stock promptly after acceptance; PROVIDED, HOWEVER, that (x) Merger Sub shall extend the Offer for successive extension periods not in excess of ten (10) business days per extension if, at the scheduled expiration date of the Offer or any extension thereof, any of the conditions to the Offer shall not be have been satisfied or waived, from until such time to time until as such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; , and (y) Merger Subsidiary shall Sub may extend the Offer for any period if and to the extent required by any rule, regulation, interpretation or position the applicable rules and regulations of the U.S. Securities and Exchange Commission (the “"SEC”") or The New York Stock Exchange (the Nasdaq Global Market applicable to the Offer; provided that in no event shall "NYSE"). In addition, Merger Subsidiary be required to Sub may extend the Offer beyond after the End Date unless acceptance of shares of Company Common Stock thereunder for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"). No fraction of a share of Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), Common Stock will be issued in which case Merger Subsidiary shall be required to extend connection with the Offer beyond the End Date. Following expiration exchange of Parent Common Stock for shares of Company Common Stock upon consummation of the Offer, Merger Subsidiary shallbut in lieu thereof each tendering stockholder who would otherwise be entitled to receive a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock that otherwise would be received by such stockholder) in the Offer shall receive from Parent an amount of cash (rounded up to the nearest whole cent), if requested without interest, equal to the product obtained by multiplying such fraction by the Company, or may, in its sole discretion, provide a subsequent offering period average closing sale price of one (“Subsequent Offering Period”1) in accordance with Rule 14d-11 share of Parent Common Stock on the 1934 Act. Subject NYSE during the ten (10) trading days ending on the trading day immediately prior to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares Offer (1) validly tendered and not withdrawn pursuant to as it may be extended in accordance with the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”requirements of this Section 1.1(a)).
(cb) As promptly soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 to register the offer and sale of Parent Common Stock pursuant to the Offer (the "REGISTRATION STATEMENT"). The Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the "PRELIMINARY PROSPECTUS"). As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TO, Offer which shall include a revised offer to purchase will contain or incorporate by reference all or part of the Preliminary Prospectus and form of the related letter of transmittal reflecting the terms and conditions set forth in this Agreement summary advertisement, if any (collectively, together with any supplements or amendments or supplements thereto, collectively the “Offer Documents”"OFFER DOCUMENTS"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Sharesshares of Company Common Stock. Each of The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company, the Company's Subsidiaries and the Company's stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 1.1(b). Parent, Merger Subsidiary Sub and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees each agree promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and Registration Statement or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock , in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO TO, the Registration Statement and the Offer Documents each time before any such document is prior to their being filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall agrees to provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive in writing from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, as soon as practicable after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such written comments.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (C Cube Microsystems Inc/De), Agreement and Plan of Reorganization (C Cube Microsystems Inc/De)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise been terminated in accordance with Article VII, by the later of (i) ten business days after the date of this Agreement and (ii) the date on which the Company files its Annual Report on Form 10-K for the 2015 fiscal year with the SEC (as defined below), Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) In accordance with the terms and conditions of this Agreement, and subject only to a right the satisfaction or waiver (to terminate the Offer pursuant to any extent such waiver is permitted by applicable Law) of the conditions set forth in Annex II (collectively, the “Offer Conditions”) and, for the avoidance of doubt, no other conditions, Merger Sub shall (and Parent shall cause Merger Sub to), at or as promptly as practicable after following the date hereofExpiration Time, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) and, at or as promptly as practicable following the Offer Acceptance Time (but in no any event later than within three Business Days following business days (calculated as set forth in Rule 14d-1(g)(3) under the public announcement Exchange Act) thereafter) pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the execution of this AgreementOffer. Parent shall provide or cause to be provided to Merger Sub, Merger Subsidiary shall amend at the Offer Acceptance Time and on a timely basis at all times thereafter, the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement and subject only to the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide waive any Offer Condition other than the Minimum Condition and (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise expressly provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not, and Parent shall cause Merger Sub not to, (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose any conditions to the Offer shall be as set forth in Annex I and that no other conditions shall applythan the Offer Conditions, (iiiE) provide that the expiration date amend, modify or supplement any of the Offer Conditions (i) in a manner that adversely affects the holders of Company Common Stock or that makes such Offer Condition more difficult to satisfy or (ii) in any other circumstance, without the consent of the Company, not to be unreasonably withheld, delayed or conditioned, (F) amend, modify or waive the Minimum Condition, (G) except as otherwise required or expressly permitted by Section 1.01(e), extend or otherwise change the Expiration Time, (H) provide for any “subsequent offering period” within the meaning of Rule 14d-11 under the Exchange Act or (I) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to the holders of Company Common Stock. The Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(d) The Offer shall be 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 ten Business Days 20 business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (such amendmentinitial expiration date and time of the Offer, the “Initial Expiration Time”) or, if the Offer has been extended pursuant to and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with Section 1.01(e), the terms of date and time to which the Offer prior to has been so extended (the Initial Expiration Time, or such later expiration date of and time to which the Offer and not withdrawnhas been so extended, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum ConditionExpiration Time”).
(e) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including parties’ respective rights to terminate the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered Agreement pursuant to Article VII, the Offer and may or shall, as applicable, be extended from time to time as follows:
(yi) if, at the earliest date as of which each then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied, satisfied or waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law), then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of five business days each (each such increment to end at 5:00 p.m., New York City time, on the last business day of such increment) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Condition(s); provided, however, that (A) Merger Sub shall not be required to extend the Offer to a date later than the Outside Date (for the avoidance of doubt, as the Outside Date may be extended pursuant to Section 7.01(b)(i) and (B) if the Marketing Period has ended and the sole then-unsatisfied Offer Condition is the Minimum Condition, (1) Merger Sub may (but shall not be required to) extend the Offer on up to two occasions in consecutive increments of five business days each (each such increment to end at 5:00 p.m., New York City time, on the last business day of such increment) (or such other duration as may be agreed to by Parent and the Company) and (2) except as provided in clause (1) of this Section 1.01(e)(i), Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer if the Company shall have requested in writing that Merger Sub so extend the Offer;
(ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or The NASDAQ Stock Market LLC (“NASDAQ”) or its staff;
(iii) if, at the then-scheduled Expiration Time, the Company brings or shall have brought any action in accordance with Section 8.08 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Merger SubsidiarySub, the Expiration Time shall be extended (A) for the period during which such action is pending or (B) by such other time period established by the court presiding over such action, as the case may be, but, in any event, not past the Outside Date (for the avoidance of doubt, as the Outside Date may be extended pursuant to Section 7.01(b)(i)); and
(iv) if , at the then-scheduled Expiration Time, (A) the full amount of the Debt Financing has not been funded and will not be available to be funded at the Offer Closing and the Closing (other than as a result of a breach by Parent or Merger Sub of any of their representations, warranties or covenants set forth in Sections 4.05 and 5.04 of this Agreement) and (B) Parent and Merger Sub acknowledge and agree in writing that (1) the Company may terminate this Agreement pursuant to Section 7.01(d)(iii) and receive the Parent Termination Fee and (2) all Offer Conditions set forth in paragraphs (d), (e), (f) and (h) of Annex I will be deemed to have been satisfied or waived at the Expiration Time of the Offer after giving effect to any extension pursuant to this clause (iv), Merger Subsidiary Sub shall have the right in its sole discretion to extend the Offer on up to four occasions in consecutive increments of five business days each (each such increment to end at 5:00 p.m., New York City time, on the last business day of such increment) (or such other duration as may be agreed to by Parent and the Company); provided that Merger Sub shall not be permitted to extend the Offer to a date later than the Outside Date (for the avoidance of doubt, as the Outside Date may be extended pursuant to Section 7.01(b)(i)). Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or expressly permitted pursuant to this Section 1.01(e). Notwithstanding the foregoing, in the event that, as a result of the extension of the Offer in accordance with the provisions of this Section 1.01(e), the Expiration Time would occur on the date that is the Outside Date, the Expiration Time shall instead occur at 5:00 p.m., New York City time, on the business day immediately preceding the Outside Date.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or other distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring on or after the date of this Agreement and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action.
(g) In the event that this Agreement is terminated in accordance with Article VII, Merger Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate as promptly as practicable (and in any event within one business day of such termination) irrevocably and unconditionally terminate the Offer in accordance with its terms Offer, and accept for payment each Share validly tendered and shall not properly withdrawn acquire any shares of Company Common Stock pursuant to the Offer and promptly following the acceptance shall cause any depository acting on behalf of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger SubsidiarySub to return, in accordance with applicable Law, all tendered shares of each of Company Common Stock to the Offer Conditionsregistered holders thereof.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(ch) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution Offer (within the meaning of this AgreementRule 14d-2 under the Exchange Act), Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all exhibits, amendments and supplements thereto, the “Schedule TO”) that will contain or incorporate by reference the Offer to Purchase and form of the related letter of transmittal (the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements theretoall documents included therein pursuant to which the Offer will be made, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Sharesshares of Company Common Stock. Each of Parent, Merger Subsidiary Sub and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, Parent further agrees to use their respective all reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub or Parent’s legal counsel any information concerning the Company and the Company’s Subsidiaries that is required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall Sub agree to provide the Company and its counsel with any written or comments (including a summary of any oral comments comments) that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject . Each of Parent and Merger Sub shall give the Company and its counsel a reasonable opportunity to participate in the response to any comments of the SEC or its staff with respect to the provisions hereof, Offer Documents and shall respond promptly respond to any such comments.
(i) Parent, Merger Sub and the paying agent with respect to the Offer shall be entitled to deduct and withhold from the Offer Price payable pursuant to the Offer such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”), or under any provision of state, local or foreign Tax Law. To the extent amounts are so withheld and (if required) paid over to the appropriate Governmental Authority, the withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
Appears in 2 contracts
Sources: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Section 8.1 and none of the events or conditions set forth in subparagraphs (a) through (d) of Annex II shall have occurred and be continuing and not have been waived by Parent or Merger Sub, as promptly as reasonably practicable and, in any event, within ten (10) Business Days of the date of this Agreement, Parent shall cause Merger Sub to, and Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement. The date on which Merger Sub commences the Offer, Merger Subsidiary shall amend within the Offer meaning of Rule 14d-2 under the Exchange Act, is referred to (i) increase the purchase price to $6.50 per Share (in this Agreement as the “Offer PriceCommencement Date”), net . Each share of Company Common Stock accepted by Merger Sub in accordance with the terms and subject to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight purchased for cash at the Offer Price. The obligations of Merger Sub to accept for payment and to pay for (New York City timeand the obligation of Parent to cause Merger Sub to accept for payment and to pay for) any shares of Company Common Stock validly tendered on or prior to the date that is ten Business Days expiration of the Offer (for this purpose calculated as it may be extended in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer ) and not properly withdrawn shall be subject to the condition that (i) there shall be being validly tendered (other than by guaranteed delivery where actual delivery has not occurred on or prior to such time) and not properly withdrawn prior to the expiration of the Offer (as it may be extended in accordance with this Agreement) that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent or any of its Subsidiaries, represents a majority of the shares of Company Common Stock outstanding on a fully-diluted basis (the “Minimum Condition”), and (ii) the other events or conditions set forth in Annex I. Subject to the terms and conditions of the Offer, Merger Sub shall (and Parent shall cause Merger Sub to), in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawnOffer, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Common Stock (the time of such first acceptance, the “Acceptance Time”) validly tendered and not properly withdrawn pursuant to the Offer and promptly following after expiration of the acceptance Offer; provided, however, that (i) if on the initial expiration date of Shares for payment pursuant the Offer or on any subsequent scheduled expiration date of the Offer (as it may be extended in accordance with this Agreement), any of the events or conditions to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant set forth on Annex I shall exist and, subject to the Offer. The obligation provisions of this Agreement, shall not have been waived by Merger Subsidiary (and of Parent to cause Sub, Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Sub expressly reserves the right to waive any of the Offer Conditions and to make any other changes (and, in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Companysuch case, Parent shall cause Merger Subsidiary Sub to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived), from time to time time, extend the Offer for additional successive periods of up to twenty (20) Business Days per extension (with the length of such periods to be determined by Parent), until such all of the conditions set forth in Annex I are satisfied (other than conditions which by their nature are or validly waived in order to be satisfied on permit the Acceptance Date) or waived; Time to occur, and (yii) Merger Subsidiary Sub shall extend the Offer from time to time for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff of the SEC applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend . If less than 90% of the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement number of outstanding shares of Company Common Stock are accepted for purchase pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or Sub may, in its sole discretiondiscretion (and without the consent of the Company or any other Person), elect to provide a for one or more subsequent offering period periods (“Subsequent Offering Period”of up to twenty (20) Business Days in the aggregate) in accordance with Rule 14d-11 under the Exchange Act. Merger Sub expressly reserves the right from time to time to waive any of the 1934 Act. Subject conditions set forth in Annex I (other than the Minimum Condition and the condition set forth in subparagraph (e) of Annex I) or to increase the foregoing, including the requirements of Rule 14d-11, and upon Offer Price or to make any other changes in the terms and subject to the conditions of the Offer; provided that, without the prior written consent of the Company, Merger Subsidiary shallSub shall not decrease the Offer Price, and Parent 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, change, modify or waive the Minimum Condition, impose additional conditions to the Offer or modify or change any condition to the Offer in a manner materially adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer, reduce the time period during which the Offer shall cause it toremain open or, accept except for payment and pay forany extension required or permitted hereunder, extend or otherwise change the expiration date of the Offer, or amend, modify or supplement any other term of the Offer in any manner adverse to the holders of shares of Company Common Stock or in a manner which would delay consummation of the Offer.
(b) Subject to the first sentence of Section 2.1(a), as promptly as reasonably practicable after the expiration of the Offerand, all Shares (1) validly tendered and not withdrawn pursuant to in any event, no later than the Offer and (2) validly tendered Commencement Date, in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of order to reflect the execution of this AgreementAgreement and the terms hereof, Merger Subsidiary shall, and Parent shall file or cause its Affiliates to, (i) file to be filed with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which shall include will contain a revised offer to purchase and form of a letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, such schedule together with the documents included therein pursuant to which the Offer is made, and any amendments or and supplements thereto, the “Offer Documents”), and (ii) . Subject to the extent required by applicable U.S. federal securities lawsCompany’s compliance with Section 2.2(c), Parent and Merger Sub shall cause the Offer Documents to be disseminated to holders of Sharesshares of Company Common Stock as required by applicable U.S. federal securities Laws. Each of ParentParent and Merger Sub, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, shall not contain any untrue statement of a material fact or omit on the other hand, agree 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respectrespect or as otherwise required by Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case shares of Company Common Stock as and to the extent required by applicable U.S. federal securities lawsLaws. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 2.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. In addition, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (i) any comments or communications, whether written or oral comments oral, that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptlypromptly after Parent’s or Merger Sub’s, but in no event later than twenty-four hoursas the case may be, after the receipt of such comments, and, subject and (ii) a reasonable opportunity to participate in the response of Parent or Merger Sub to those comments and to provide comments on that response.
(c) In the event this Agreement is terminated pursuant to Section 8.1 prior to the provisions hereofAcceptance Time, Parent and Merger Sub shall promptly respond terminate the Offer without accepting any shares of Company Common Stock previously tendered and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof.
(d) If any portion of the Offer Price is to be paid to a Person other than the Person in whose name the tendered shares of Company Common Stock are registered, the amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), or such other Person, or otherwise) payable on account of such transfer to such commentsother Person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, unless evidence satisfactory to Merger Sub of the payment of such Taxes, or exemption therefrom, is submitted.
(e) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Superior Well Services, INC), Merger Agreement (Nabors Industries LTD)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article VIII, below, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to and in any event, within fifteen (i15) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger SubsidiaryDays, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act")) the Offer.
(b) The obligation of Merger Sub to accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) the satisfaction of the Minimum Condition; and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A to this Agreement (together with the Minimum Condition, the "Offer Conditions"). Subject to the satisfaction, or waiver by Parent or Merger Sub, of the Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer and as promptly following as practicable after the acceptance of Shares for payment pursuant to the Offer pay the Expiration Time. The Offer Price (without interest) for payable in respect of each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by Parent or Merger Subsidiary, means of each an offer to purchase (the "Offer to Purchase") that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions.
(b) . Parent and Merger Subsidiary Sub expressly reserves reserve the right (in their sole discretion) to waive waive, in whole or in part, any of Offer Condition, to increase the Offer Conditions and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided 26995100v.1 by this Agreement or conditions as approved in writing by the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer; provided that without , (ii) reduce the prior consent of the Company Offer Price, (which consent may be granted iii) change, modify or withheld by the Company in its sole discretion) (A) waive the Minimum Condition may not be waivedCondition, (Biv) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds add to the conditions set forth in Exhibit A or modify or change any Offer Conditions or amends any other term of the Offer Condition in a manner adverse in any manner adverse material respect to the stockholders any holders of Company Common Stock of the Company, (Cv) the expiration date shall not be extended except as otherwise provided hereinin this Section 1.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse in any material respect to any holders of Company Common Stock of the Company.
(d) The Offer shall expire at midnight (eastern standard time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the "Initial Expiration Time") or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the "Expiration Time").
(e) Merger Sub may extend the Offer Expiration Time at any time with the Company’s written consent. Merger Sub (i) may, without the Company’s consent, extend the Offer on one or more occasions for a period of ten (10) Business Days, if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, in Merger Sub's reasonable discretion, waived, until such time as such condition or conditions are satisfied or waived and (ii) shall extend the Offer for any period required by applicable Law, any interpretation or position of the Securities and Exchange Commission (the "SEC"), the staff thereof or the NASDAQ Stock Market ("NASDAQ") applicable to the Offer; provided, however, that, without the Company’s written consent, Merger Sub shall not extend the Offer beyond the earlier of the October 31, 2016 (the "Outside Date") and the termination of this Agreement. If, as of any Offer Expiration Time, any Offer Condition is not satisfied and has not been waived by Merger Sub in its sole discretion, then on not more than two (2) occasions at the request of the Company, Merger Sub shall extend the Offer for an additional period of ten (10) Business Days (or such longer or shorter period as the parties hereto may agree) to permit such Offer Condition(s) to be satisfied; provided, however, that, without the Company’s written consent, Merger Sub shall not extend the Offer, and without Merger Sub’s prior written consent, Merger Sub shall not be required to extend the Offer, in each case beyond the earlier of the Outside Date and the termination of this Agreement
(Df) On the terms and subject to the conditions of 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 3.05) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the "Offer Closing", and the date on which the Offer Closing occurs is referred to in this Agreement as the "Offer Closing Date". 26995100v.1
(g) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 11.01Article VIII. Notwithstanding If the foregoingOffer is terminated or withdrawn by Merger Sub, (x) Merger Subsidiary shall (or at this Agreement is terminated pursuant to Article VIII, prior to the request acceptance for payment of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that Company Common Stock tendered in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shallreturn, and shall cause its Affiliates toany depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the registered holders thereof.
(ih) As soon as practicable on the date of the commencement of the Offer but not later than fifteen (15) Business Days thereafter, Parent and Merger Sub shall file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the "Schedule TO"). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “"Offer Documents”"), . The Company shall promptly furnish to Parent and (ii) to Merger Sub all information concerning the extent Company required by applicable U.S. federal securities laws, the Exchange Act to be set forth in the Offer Documents. Parent and Merger Sub shall be entitled to include the Company Board Recommendation in the Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the 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 shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made such comments.
(i) Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
(j) For purposes of this Agreement and the Offer, unless agreed by the Company and its counsel. Parent and Merger Subsidiary Sub, any shares of Company Common Stock subject to notices of guaranteed delivery shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect be deemed not to be validly tendered into the Offer Documents promptly, but in no event later than twenty-four hours, after unless and until the receipt shares underlying such notices of such comments, and, subject guaranteed delivery are delivered to the provisions hereof, promptly respond to such comments.Merger Sub. 26995100v.1
Appears in 2 contracts
Sources: Merger Agreement (Nanosphere Inc), Merger Agreement (Nanosphere Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article 7 and none of the events or conditions set forth in Annex IA shall have occurred and be existing, as promptly as practicable after Parent shall cause Acquisition I and Holdco to amend the date hereof, but in no event Original Offer not later than three Business Days following February 1, 2001 as required to reflect the public announcement of the execution of revised terms and conditions set forth in this Agreement, Merger Subsidiary shall amend including Holdco as the Offer to (i) increase Offeror. In the purchase price to $6.50 per Offer, each Share (together with the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered associated Right accepted by Holdco in accordance with the terms of the Offer prior shall be exchanged for the right to receive from Holdco, at the expiration date election of the holder of such Share: (X) the Cash Consideration or (Y) the Common Stock Consideration plus cash in lieu of fractional shares of Holdco Common Stock in accordance with Section 1.1(g), without interest, or (Z) the Preferred Stock Consideration plus cash in lieu of fractional shares of Holdco Preferred Stock in accordance with Section 1.1(g), without interest, subject to proration in the case of alternatives (Y) and (Z) as set forth in Sections 1.1(d) and (e). In the Offer, each Preferred Share accepted by Holdco in accordance with the terms of the Offer and not withdrawn, a number of Shares that, together with shall be exchanged for the Shares then owned by right to receive the Per Preferred Share Amount. Parent and its Affiliates, represents a majority of Holdco shall use all reasonable efforts to consummate the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditionsOffer. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law Parent shall cause Holdco to accept for payment Shares tendered pursuant to the Offer payment, and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Holdco shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share payment, Shares and Preferred Shares which have been validly tendered and not properly withdrawn pursuant to the Offer and promptly at the earliest time following expiration of the acceptance of Shares for payment pursuant offering period in the Offer at which all conditions to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offershall have been satisfied or waived by Holdco. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Holdco to accept for payment, and pay the Offer Price (without interest) for, each Share validly for Shares and/or Preferred Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each condition that the sum of the Offer Conditions.
number of Shares validly tendered plus the number of Preferred Shares validly tendered shall be at least 25,646,399 shares (bthe "Minimum Condition") Merger Subsidiary and the other conditions set forth in Annex A hereto. Holdco expressly reserves the right to increase the Per Share Amount or the Per Preferred Share Amount and to waive any condition of the Offer Conditions and to make any other changes Offer, except the Minimum Condition. Without the prior written consent of the Company, Holdco shall not decrease the Per Share Amount or the Per Preferred Share Amount or change the form of consideration payable in the terms Offer, decrease the number of Shares or Preferred Shares sought to be purchased in the Offer, impose additional conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends amend any other term of the Offer in any manner adverse to the stockholders holders of Shares or Preferred Shares, reduce the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to time period during which the Offer shall not remain open or waive the Minimum Condition. The Cash Consideration and the Per Preferred Share Amount shall be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable paid net to the Offer; provided that seller in no event shall Merger Subsidiary be cash, less any required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)withholding of taxes, in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer. The Company agrees that no Shares or Preferred Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) Subject to Sections 1.1(d), Merger Subsidiary shall(e) and (f), each holder of Shares shall be entitled to elect to specify (i) the number of Shares which such holder desires to have exchanged for the right to receive the Cash Consideration (a "Cash Election"), (ii) the number of Shares which such holder desires to have exchanged for the right to receive Holdco Common Stock (a "Common Stock Election"); and (iii) the number of Shares which such holder desires to have exchanged for Holdco Preferred Stock (a "Preferred Stock Election" and together with a Common Stock Election, the "Stock Elections"). Any Shares which are not the subject of a valid Common Stock Election or valid Preferred Stock Election shall be exchanged for the right to receive the Cash Consideration. Any Cash Election, Common Stock Election or Preferred Stock Election shall be referred to herein as an "Election." Each holder of Shares making a Preferred Stock Election shall also specify an Alternative A, Alternative B or Alternative C election, which election will become effective in the event that proration of the Preferred Stock Consideration is required as provided in Section 1.1(d). Each holder of Shares making a Common Stock Election shall also specify an Alternative A or Alternative B election which election will become effective in the event that proration of the Common Stock Consideration is required as provided in Section 1.1(e) and any holder making a Common Stock Election that does not specify an alternative election shall be deemed to have elected Alternative B. All Elections shall be made on a form furnished by Parent shall cause it tofor that purpose (a "Form of Election"), accept for payment and pay for, as promptly as practicable after which form may be part of the expiration letter of transmittal accompanying the Offer, all Shares (1) validly tendered and not withdrawn pursuant reasonably satisfactory to the Offer and (2) validly tendered Company. Holders of record of Shares who hold such Shares as nominees, trustees or in the Subsequent Offering Period (the date other representative capacities may submit multiple Forms of Election on which Shares are first accepted for payment, the “Acceptance Date”)behalf of their respective beneficial holders.
(c) As promptly as practicable after There shall be no proration of Cash Elections.
(d) In the date hereof, but event the total number of Preferred Stock Elections would require aggregate Preferred Stock Consideration in no event later than three Business Days following the public announcement excess of the execution Maximum Preferred Stock Consideration, such Preferred Stock Elections shall be subject to proration as follows: For each Preferred Stock Election, the number of this Agreement, Merger Subsidiary shall, and Shares that shall cause its Affiliates to, receive the Preferred Stock Consideration shall be the total number of Shares subject to such Preferred Stock Election multiplied by the Preferred Stock Proration Factor. The "Preferred Stock Proration Factor" means a fraction (ix) file with the SEC an amendment to the Schedule TO, numerator of which shall include be the Maximum Preferred Stock Consideration and (y) the denominator of which shall be the product of the aggregate number of Shares subject to all Preferred Stock Elections made by all holders of Shares multiplied by the Preferred Stock Consideration. The maximum aggregate amount of the Preferred Stock Consideration shall be 3,500,000 shares of Holdco Preferred Stock (the "Maximum Preferred Stock Consideration"). All Shares subject to a revised offer Preferred Stock Election and an Alternative A or Alternative B election, other than that number converted into the right to purchase and form of letter of transmittal reflecting receive the terms and conditions set forth Preferred Stock Consideration in accordance with this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”Section 1.1(d), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents shall be deemed to be disseminated Common Stock Elections (expressing the same Alternative A or Alternative B election) and converted into the right to holders of Shares. Each of Parent, Merger Subsidiary and receive the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, andCommon Stock Consideration, subject to proration as provided in Section 1.1(e). All shares subject to a Preferred Stock Election and an Alternative C election, other than that number converted into the provisions hereofright to receive the Preferred Stock Consideration in accordance with this Section 1.1(d), promptly respond shall be deemed to such commentsbe Cash Elections and converted into the right to receive the Cash Consideration.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (NNG Inc), Agreement and Plan of Merger (Northrop Grumman Corp)
The Offer. (a) Provided Subject to the provisions of this Agreement, and provided that nothing this Agreement shall not have occurred that would give rise been terminated in accordance with Section 9.1 and subject to a right to terminate the Offer pursuant to any satisfaction or waiver of each of the conditions to the Offer set forth in Annex IA to this Agreement (the "Offer Conditions"), as promptly as practicable after not later than the tenth (10th) business day from the date hereof, but in no event later than three Business Days following the of public announcement (counting the business day on which such announcement is made) of the execution of this Agreement (which date of announcement shall be no later than the first business day after the execution of this Agreement), Acquiror shall cause Merger Subsidiary shall amend Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer to (i) increase the purchase at a price to $6.50 per Share (the “Offer Price”), net equal to the seller in cashCommon Stock Price for each and every share of Company Common Stock. The obligation of Merger Sub to consummate the Offer, (ii) provide that the conditions to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject solely to the satisfaction or waiver of the Offer Conditions. It is agreed that the Offer Conditions are for the benefit of Merger Sub and may be asserted by Merger Sub regardless of the circumstances giving rise to any such condition and Merger Sub expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the prior written consent of Company, Merger Sub shall not waive the Minimum Condition (as defined in Annex A) or the condition set forth in paragraph (f) of Annex I A. The initial time and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be 12:00 midnight (New York City time) Eastern Standard Time on the date that is ten Business Days the 20th business day following the commencement of the Offer (for this purpose calculated in accordance with determined using Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following (the filing of such amendment, "Scheduled Expiration Date" and (ivany date to which the Offer is extended as permitted by Section 1.1(b) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject referred to herein as the condition that there shall be validly tendered "Extended Expiration Date").
(b) Merger Sub expressly reserves the right, in accordance with the terms of the Offer prior its sole discretion, to the expiration date of the Offer modify and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject make changes to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) forprovided, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior written consent of the Company (which consent may will not be granted or withheld valid unless authorized by the Company in its sole discretion) (A) the Minimum Condition may not be waivedBoard of Directors of Company), (B) no modification or change may be made that which (i) decreases the consideration payable in the Offer (except as permitted by this Agreement), (ii) changes the form of consideration to be paidpayable in the Offer (other than by adding consideration), (iii) changes the Minimum Condition, (iv) decreases the price per Share or the maximum number of Shares shares of Company Common Stock sought in pursuant to the Offer, amends or adds to (v) changes the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the material conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied in a manner
(other than conditions which by their nature are to be satisfied on c) On the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position date of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Acquiror and Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment with respect to the Offer a Tender Offer Statement on Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement TO (collectively, together with any all amendments or and supplements thereto and including the exhibits thereto, the “Offer Documents”), and (ii"Schedule TO") with respect to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to which will comply in all material respects with the 1934 Act provisions of applicable federal securities laws, and will contain the offer to purchase relating to the Offer and forms of related letters of transmittal and summary advertisement (such Schedule TO and the rules and regulations thereunder and other applicable Law and that documents included therein pursuant to which the Offer shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents, when filed "). Acquiror shall deliver copies of the proposed forms of the Offer Documents to Company at least 48 hours prior to filing such documents with the SEC for review and on the date first published, sent or comment by Company and its counsel. Company and its counsel shall be given not less than 48 hours to review any amendments and supplements to the stockholders of Offer Documents prior to their filing with the SEC or dissemination to Company's stockholders. Acquiror shall provide Company and its counsel in writing any comments that Merger Sub, shall not contain any untrue statement of a material fact Acquiror or omit to state any material fact required to be stated therein their counsel may receive from the SEC or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation its staff with respect to any information in the Offer Documents supplied by promptly and in any event not later than 24 hours after the Company or its Representatives in writing)receipt thereof. Each of ParentCompany, Acquiror and Merger Subsidiary and the Company agrees Sub shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. respect and Acquiror and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts 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 holders the stockholders of SharesCompany, in each case case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Kulicke & Soffa Industries Inc), Merger Agreement (Kulicke & Soffa Industries Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate Within ten business days (as such term is defined in Rule 14d-1(g)(3) promulgated under the Offer pursuant to any of the conditions set forth in Annex IExchange Act, as promptly as practicable “Business Days”) after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementMerger Sub shall, and Parent shall cause Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cashSub to, (iiand the Company shall cooperate with Merger Sub to) provide that commence (within the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 promulgated under the Exchange Act) following an offer to purchase all outstanding shares of Common Stock of the filing Company at the purchase price of $16.00 per share of Common Stock (such amendmentprice, and (iv) make such other amendments as are necessary or appropriate any higher price per share of Common Stock paid by Merger Sub pursuant to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to Offer, the expiration “Per Share Amount”) and shall, on the date of commencement of the Offer but after affording the Company and not withdrawnits counsel reasonable opportunity to review and comment thereon and giving reasonable and good faith consideration to any comments made thereby, file a number of Shares that, Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, including the Shares then owned by Parent exhibits thereto, the “Schedule TO”) and its Affiliates, represents a majority of all other necessary documents with the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested Securities and exercisable Exchange Commission (the “Minimum ConditionSEC”) and cause such documents to be disseminated to holders of shares of Common Stock, as required by Rule 14d-4 promulgated under the Exchange Act, in each case in connection with the Offer (the “Offer Documents”), and shall consummate the Offer, subject to the other terms and conditions set forth hereof and thereof. The Offer Documents will comply in Annex I and to no other conditionsall material respects with the provisions of all applicable Federal securities Laws. Subject to the terms and conditions of this Agreement, including Agreement and to the prior satisfaction or waiver of the conditions set forth in Annex I B hereto (the “Tender Offer Conditions”), promptly after Parent shall cause Merger Sub to, and Merger Sub shall, upon the later expiration of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to Offer, accept for payment Shares payment, and pay for (after giving effect to any required withholding or stock transfer Tax), all shares of Common Stock validly tendered pursuant to the Offer and (y) not validly withdrawn on the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the OfferAcceptance Date. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Sub to accept for paymentpayment and to pay for any shares of Common Stock validly tendered shall be subject solely to the satisfaction or waiver by Merger Sub of the Tender Offer Conditions. The Per Share Amount shall be net to the seller in cash, and pay the Offer Price (without interest) for, each Share validly subject to reduction for any applicable withholding or stock transfer Taxes payable by such seller. No shares of Common Stock held by the Company or its Subsidiaries shall be tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer ConditionsOffer.
(b) Parent on behalf of Merger Subsidiary Sub expressly reserves the right from time to time, subject to Section 1.1(c) and Section 1.1(d), in its sole discretion, to waive any of Tender Offer Condition, to increase the Offer Conditions and Per Share Amount or to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, that without the prior written consent of the Company Company, Merger Sub shall not (which consent may be granted i) decrease the Per Share Amount or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paidpayable in the Offer (other than by adding consideration), decreases the price per Share or (ii) decrease the number of Shares sought shares of Common Stock to be purchased in the Offer, amends (iii) amend or adds waive satisfaction of the Minimum Condition (as defined in Annex B), (iv) impose additional conditions to the Offer or modify any conditions to the Offer in a manner adverse to the holders of shares of Common Stock, (v) make any change in the Offer that would require an extension or delay of the then current Expiration Date; provided, however, that this clause (v) shall not limit the right of Parent and Merger Sub to extend the Expiration Date as required or permitted by Section 1.1(d), (vi) modify or amend the Tender Offer Conditions (other than to waive such Tender Offer Conditions, except for the Minimum Condition) or amends (vii) modify or amend any other term of the Offer Offer, in the case of clauses (vi) and (vii), in any manner adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except shares of Common Stock in their capacities as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request holders of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date shares of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Common Stock.
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, No agreement or representation hereby is made or shall be made by Parent or Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation Sub with respect to any information in the Offer Documents supplied by the Company expressly for inclusion in, or its Representatives in writing)with respect to Company information derived from the Company SEC Filings that is included or incorporated by reference in, the Offer Documents. Each of Parent, Merger Subsidiary Sub and the Company each agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected or supplemented, to be promptly disseminated to holders of Sharesthe Company’s stockholders, in each case as and to the extent required by applicable U.S. federal Federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the any Offer Documents (including each time amendment or supplement thereto) before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, SEC. Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments or other additions, deletions or changes made by the Company and its counselcounsel with respect to any Offer Documents. Parent and Merger Subsidiary Sub shall provide the Company with (in writing, if written), and its counsel shall consult with the Company regarding, any comments (written or oral comments oral) that may be received by Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptlypromptly after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon any proposed responses before they are filed with the SEC.
(d) The initial expiration date of the Offer shall be at midnight, but New York City time, on the 20th Business Day following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act) (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Merger Sub shall not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, unless this Agreement is terminated in accordance with ARTICLE SEVEN, Merger Sub, without Parent or Merger Sub obtaining the consent of the Company, (i) shall extend the Expiration Date for any period required by the rules and regulations of the SEC or the NYSE AMEX (“NYSE AMEX”) applicable to the Offer, including in connection with an increase in the Per Share Amount, (ii) shall extend the Expiration Date if, on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by Parent, for such periods of up to ten Business Days at a time (or such other period as shall be approved by the Company) which such period of time as Merger Sub may deem reasonably necessary, but, except as provided in Section 1.1(d)(iii) or as required by the rules and regulations of the SEC or NYSE AMEX applicable to the Offer (including in connection with an increase in the Per Share Amount), in no event may the Expiration Date be extended pursuant to this clause (ii) to a date later than twenty-four hoursthe Outside Date, and (iii) may extend the Expiration Date beyond the Outside Date for up to a period not to exceed the 13th Business Day after the last to occur of any date on which (w) the Company shall have publicly announced the receipt of an Acquisition Proposal in the event such comments, and, subject announcement is made less than ten Business Days prior to the provisions Outside Date, (x) the Company publicly announces its reaffirmation of its approval or recommendation of the Offer following the public announcement of the receipt of any Acquisition Proposal in the event that such reaffirmation or announcement is made less than ten Business Days prior to the Outside Date, (y) an Adverse Recommendation Change has occurred less than ten Business Days prior to the Outside Date or (z) the Company advises Parent of an Acquisition Proposal in accordance with Section 5.3(d) if such advisement is received by Parent less than ten Business Days prior to the Outside Date. Except as expressly provided in this Section 1.1(d), Parent shall not extend the Offer if all of the Tender Offer Conditions are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for validly tendered shares of Common Stock that are not validly withdrawn. Nothing in this Section 1.1(d) shall affect any termination rights in ARTICLE SEVEN.
(e) In the event the Acceptance Date occurs but Merger Sub does not acquire a sufficient number of shares of Common Stock to enable a Short-Form Merger to occur pursuant to Section 2.7 hereof, promptly respond Merger Sub may (in its sole discretion), until the Outside Date, provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 20 Business Days in accordance with Rule 14d-11 promulgated under the Exchange Act.
(f) Promptly upon the satisfaction or waiver by Merger Sub of the Tender Offer Conditions in accordance with Section 1.1(b), Parent shall cause Merger Sub to, and Merger Sub shall, (i) as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”), which acceptance may be by oral notice to the Paying Agent, (ii) on the Acceptance Date, deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Per Share Amount for all such commentsaccepted shares of Common Stock and (iii) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Common Stock so accepted for payment. 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.
(g) Promptly after the Acceptance Date, the Company shall take all action requested by Parent necessary to elect to be treated as a “controlled company” as defined by Section 801(a) of the NYSE AMEX Company Guide and make any necessary filings and disclosures associated with such status.
Appears in 2 contracts
Sources: Merger Agreement (Crane Co /De/), Merger Agreement (Merrimac Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 7.1 hereof and that would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Annex II hereto shall have occurred and be existing, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the "Securities Exchange Act")) the Offer as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days ten business days following the first public announcement of the execution of this AgreementOffer, Merger Subsidiary and shall amend use reasonable best efforts to complete the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net subject to the seller in cash, (ii) provide that the terms and conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer obligation of Purchaser to accept for payment any Common Shares tendered shall be subject to the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other only those conditions set forth in Annex I and hereto. The Per Share Amount payable in the Offer shall be net to each seller in cash, subject to reduction only for any applicable withholding or stock transfer taxes payable by the seller. The Company agrees that no other conditions. Subject to Common Shares held by the terms and conditions of this Agreement, including the prior satisfaction Company or waiver of the conditions set forth in Annex I any Company Subsidiaries (the “Offer Conditions”), promptly after the later of (xas defined below) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares will be tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without Without the prior written consent of the Company Company, Purchaser shall not (which consent may be granted i) decrease the Per Share Amount or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Common Shares sought in the Offer, amends (iii) amend or adds waive satisfaction of the Minimum Condition (as defined in Annex I hereto) or (iv) impose additional conditions to the Offer Conditions or amends amend any other term of the Offer in any manner adverse to the stockholders holders of the CompanyCommon Shares. The Offer shall initially expire 20 business days after the date of its commencement, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that unless this Agreement is terminated pursuant in accordance with Section 7.1 hereof, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on the date of termination. Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless at the expiration date of the Offer the conditions to Section 11.01the Offer described in Annex I hereto shall not have been satisfied or earlier waived. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at Purchaser may, without the request consent of the Company, Parent shall cause Merger Subsidiary to) extend the Offer at any time, and from time to time, (i) if at the then scheduled or extended expiration date of the Offer any of the conditions to the Offer Purchaser's obligation to accept for payment and pay for Common Shares shall not be have been satisfied or waived, from until such time to time until as such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “"SEC”") or the Nasdaq Global Market its staff applicable to the Offer; provided or (iii) if all conditions to Purchaser's obligation to accept for payment and pay for Common Shares are satisfied or waived but the number of Common Shares tendered is less than 90% of the then outstanding number of Common Shares, for an aggregate period of not more than 20 business days (for all such extensions) beyond the latest expiration date that would be permitted under clause (i) or (ii) of this sentence. Notwithstanding the preceding sentence, and in no event shall Merger Subsidiary be required addition to extend the Offer beyond period permitted thereunder, Purchaser may, without the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration consent of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide for a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 promulgated under the Exchange Act) of the 1934 Act. Subject up to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after 20 business days following the expiration of the Offer, Offer and the acceptance for payment of all Company Common Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in prior to the Subsequent Offering Period (expiration of the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(c) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") having only the conditions set forth in Annex I hereto. As promptly soon as practicable after on the date hereofthe Offer is commenced, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and Purchaser shall cause its Affiliates to, (i) file with the SEC an amendment to the a Tender Offer Statement on Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement TO (collectively, together with any all amendments or and supplements thereto, the “Offer Documents”), and (ii"Schedule TO") with respect to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act provisions of, and satisfy in all material respects the requirements of, such Schedule TO and all applicable federal securities laws and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the "Offer Documents"). Each of Parent, Purchaser and the rules and regulations thereunder and other applicable Law and that Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents, when filed with the SEC Documents if and on the date first published, sent or given to the stockholders of the Company, extent that such information shall not contain any untrue statement of a material fact have become false or omit to state misleading in any material fact required respect and to be stated therein supplement the information provided by it specifically for use in the Schedule TO or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shallmisleading, and shall cause its Affiliates to, use their respective reasonable best efforts Purchaser further agrees to take all steps necessary to cause the Schedule TO TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents Documents, as so corrected or supplemented, to be disseminated to holders of Common Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the any Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Purchaser shall provide consider any such comments in good faith.
(d) Upon the Company terms and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereofconditions of the Offer, promptly respond to such commentsPurchaser shall accept for payment and pay for Common Shares as soon as permitted under the terms of the Offer and applicable law.
Appears in 2 contracts
Sources: Merger Agreement (SMC Corp), Merger Agreement (Monaco Coach Corp /De/)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article VII, as promptly as practicable after the date hereof, but hereof (and in no any event later than three within fifteen (15) Business Days following the public announcement of the execution of this Agreementdate hereof), Merger Subsidiary Sub shall amend (and Parent shall cause Merger Sub to) commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer to purchase (subject to the Offer Conditions, including the Minimum Condition) all the outstanding Common Stock (other than the Shares cancelled or converted pursuant to Section 2.1(a)) at a price per share equal to the Offer Price. The consummation of the Offer, and the obligation of Merger Sub to accept for payment, purchase and pay for any shares of Common Stock validly tendered (and not withdrawn) pursuant to the Offer, shall be subject only to: (i) increase there being validly tendered in the purchase price Offer and not properly withdrawn prior to $6.50 per Share the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, together with the number of shares of Common Stock (if any) then owned by Parent or its Subsidiaries, represents at least a majority of the shares of Common Stock then outstanding (collectively, the “Minimum Condition”); (ii) this Agreement not having been terminated in accordance with its terms (the “Offer PriceTermination Condition”); and (iii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Offer Conditions”).
(b) Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) (i) promptly (and in any event no later than one (1) Business Day) after the Expiration Date accept for payment and purchase all shares of Common Stock validly tendered (and not properly withdrawn) pursuant to the Offer (the time of such acceptance, the “Acceptance Time”) and (ii) promptly (and in any event no later than one (1) Business Day) after the applicable Expiration Date cause the Paying Agent to pay for such shares of Common Stock. Subject to Section 2.9, the Offer Price payable in respect of each share of Common Stock validly tendered (and not properly withdrawn) pursuant to the Offer shall be paid net to the seller in cash, without interest.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Offer Conditions. Unless previously approved by the Company in writing, Parent and Merger Sub shall not: (i) decrease the Offer Price, (ii) provide that change the conditions to form of consideration payable in the Offer shall be as set forth in Annex I and that no other conditions shall applyOffer, (iii) provide change the number of shares of Common Stock to be purchased in the Offer, (iv) amend or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term that is adverse to the holders of Common Stock, (vi) extend the expiration date of the Offer except as required or permitted by this Section 1.1, (vii) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common Stock. Parent and Merger Sub expressly reserve the right (but shall not be midnight obligated) at any time and from time to time, in their sole discretion, to (A) increase the Offer Price, and (B) waive (to the extent permitted by applicable Law) any Offer Condition and make any other changes in the terms and conditions of the Offer, in each case, that are not inconsistent with the terms of this Agreement (including the limitations set forth in the preceding sentence).
(d) Unless extended or terminated in accordance with the terms of this Agreement, the Offer shall expire at one minute after 11:59 p.m. (New York City time) on the date that is ten twenty (20) Business Days (for this purpose following the commencement of the Offer, as calculated in accordance with Rule 14d-1(g)(3) under of the Exchange ActAct (such time and date, the “Initial Expiration Date”) following or if the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered Initial Expiration Date has been extended in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including on the prior satisfaction or waiver of date to which the conditions set forth in Annex I Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Offer ConditionsExpiration Date”), promptly after the later of .
(xe) the earliest date If as of which any then scheduled Expiration Date, any Offer Condition has not been satisfied or, to the extent waivable by Parent or Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered Sub pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfiedthis Agreement, or waived by Parent or Merger SubsidiarySub, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if Parent so desires and the Company consents in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant writing prior to such extension) in order to permit the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each satisfaction of the Offer Conditions; provided, however, that Merger Sub shall not be required to extend the Offer beyond August 31, 2019 (such date, the “Outside Date”), and shall not extend the Offer beyond the Outside Date without the Company’s consent. Notwithstanding the foregoing, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or NASDAQ; provided, however, that Merger Sub shall not be required to extend the Offer beyond the Outside Date, and shall not extend the Offer beyond the Outside Date without the Company’s consent.
(bf) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Date without the prior written consent of the Company, except in the event that if this Agreement is terminated pursuant to Section 11.01Article VII. Notwithstanding the foregoingIf this Agreement is terminated pursuant to Article VII, (x) Merger Subsidiary Sub shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Sub to) extend promptly terminate the Offer if at and shall not acquire the scheduled or extended expiration date shares of Common Stock pursuant thereto. If the Offer any of the conditions is terminated by Merger Sub, or this Agreement is terminated prior to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the OfferTime, Merger Subsidiary shallSub shall promptly return, if requested by the Companyand shall cause any depositary acting on behalf of Merger Sub to promptly return, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 applicable Law, all tendered shares of the 1934 Act. Subject Common Stock to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)registered holders thereof.
(cg) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of the execution commencement, within the meaning of this AgreementRule 14d-2 under the Exchange Act, of the Offer, Parent and Merger Subsidiary Sub shall, and shall cause its Affiliates to, :
(i) file with the SEC an amendment SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”);
(ii) cause a notice that satisfies the requirements of Section 3-106.1(e)(1) of the MGCL (the “Maryland Short Form Notice”) to be given to all holders of shares of Common Stock with the Offer Documents, unless, prior to the date the Offer is first commenced, the Maryland Short Form Notice has been given to all holders of shares of Common Stock who, except for the application of Section 3-106.1 of the MGCL, would be entitled to vote on the Merger on the date such notice is given;
(iii) deliver a copy of the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements including all exhibits thereto, the “Offer Documents”), and (ii) to the extent Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act;
(iv) give telephonic notice of the information required by applicable U.S. federal securities lawsRule 14d-3 promulgated under the Exchange Act, and, unless waived by NASDAQ or the NASDAQ Listing Rules, mail by means of first class mail a copy of the Schedule TO, to NASDAQ in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and
(v) cause the Offer Documents to be disseminated to all holders of Shares. Each shares of ParentCommon Stock as and to the extent required by all applicable Laws, Merger Subsidiary including the Exchange Act.
(h) The Schedule TO shall include as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and the Company agrees that they shall cause a form of notice of guaranteed delivery (the Schedule TO and the other documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein as the “Offer Documents”). The Offer Documents filed by any of them with shall include the SEC to comply Maryland Short Form Notice (whether as an exhibit or otherwise) as provided in all material respects with the 1934 Act clause (g)(ii) above and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders may include a description of the Companydeterminations, 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 approvals and recommendations of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary Board and the Company agrees promptly described in this Agreement (and a change to correct any information provided by it or any such determinations, approvals and recommendations to the extent applicable at the relevant time). Subject to the provisions of its Affiliates for use Section 5.2, the Company consents to the inclusion of a description of the Company Recommendation in the Schedule TO and the Offer Documents. Parent and Merger Sub, on the one hand, and the Company, on the other hand, agree to use reasonable best efforts to (i) respond promptly to any comments of the SEC or its staff with respect to the Offer Documents and (ii) cause the Offer Documents when filed to comply with applicable Law and promptly correct any information provided by it for use in the Offer Documents, if and to the extent that any of them become aware that such information shall have become false or misleading in any material respect. Merger Subsidiary shallrespect or as otherwise required by applicable Law, and shall cause its Affiliates to, use their respective reasonable best efforts Parent and Merger Sub agree to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Common Stock, in each case as and to the extent required by all applicable U.S. federal securities lawsLaws, including the Exchange Act. The Company shall promptly furnish to Parent all information concerning the Company, its stockholders and the Company Subsidiaries that may be reasonably requested in connection with this Section 1.1(h). The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any such comments made by the Company and its counsel. In addition, Parent and Merger Subsidiary Sub shall provide the Company and its counsel promptly with copies of any written or comments, and shall inform them of any oral comments comments, that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review and comment on any proposed written or oral responses to the provisions hereofSEC or its staff in respect of the Schedule TO and Offer Documents and Parent and Merger Sub shall give reasonable consideration to any such comments made by the Company and its counsel and shall give the Company and its counsel a reasonable opportunity to participate in any substantive telephonic communications with the staff of the SEC related thereto, promptly respond to the extent such commentsparticipation is not prohibited by the SEC or applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Jacobs Engineering Group Inc /De/), Merger Agreement (Keyw Holding Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated pursuant to Article 8 hereof and that no event shall have occurred that and be continuing that, had the Tender Offer been commenced, would give rise to a right to terminate the Tender Offer pursuant to any of the conditions set forth in Annex IExhibit 1.2-E, as promptly as reasonably practicable after (or by such other date as the date hereofParties may mutually agree in writing), but in no event later than three 10 Business Days following the public announcement of the execution date of this Agreement, Merger Subsidiary Acquisition shall, and Parent shall amend cause Acquisition to, commence, within the meaning of the Exchange Act, the Tender Offer by offering to (i) increase purchase all of the purchase price outstanding shares of Common Stock, subject to $6.50 the Minimum Condition, for an amount in cash per Share share (the “Tender Offer Price”) equal to 87% of the book value per share of Common Stock (“BVPS”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (5:00 P.M. New York City time) time on the date that is ten (10) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Tender Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum ConditionCalculation Date”) and ). BVPS shall be calculated by the Company, subject to the review and approval of the Special Committee, using the following data: (i) the market value of the Company’s agency securities and derivatives as of the Calculation Date, (ii) the appraised value of the Company’s non-agency securities as of the Calculation Date or the most recent prior date as of which such value can be determined, (iii) cash balances in the Company’s bank accounts as of the Calculation Date, (iv) the Company's repurchase agreement balances and interest payable to repurchase counterparties as of the Calculation Date, and (v) any other conditions tangible assets or liabilities determined in accordance with generally accepted accounting principles, consistently applied ("GAAP"), including accruals, as of the Calculation Date, less $1.0 million to account for the Company's expenses related to the Transactions not included in the above-referenced accruals. B VPS shall be calculated as set forth on Schedule 1.2 and shall be certified by an authorized representative of the Company as true and accurate in Annex I all material respects. Estimates of BVPS shall be calculated as of 5:00 P.M., New York City time and posted to no other conditionsthe Company’s website as soon as reasonably practicable on the date that the Tender Offer is commenced and on every Business Day thereafter until the Calculation Date. Subject Thereafter, through the Expiration Date (as defined below), the Tender Offer Price shall be posted on the Company’s website. The Tender Offer shall be made by means of an offer to purchase that describes the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Tender Offer in accordance with this Agreement.
(a) On the date of the commencement of the Tender Offer, Acquisition will (and Parent will cause Acquisition to), if it has not already done so, file with the SEC a combined Schedule 13E-3/Tender Offer Statement on Schedule TO with respect to the Tender Offer (together with any amendments or supplements that have been made or are made in the future, the “Schedule TO”), including forms of an offer to purchase, a letter of transmittal and a summary advertisement (the Schedule TO and the documents included in it by which the Tender Offer will be made, as they may be supplemented or amended, being the “Offer Documents”) and the notice referred to in Section 3-106.1(e)(1) of the MGCL (the “Maryland Short Form Merger Notice”). Promptly after that, Acquisition will communicate the Tender Offer and deliver the Offer Documents and the Maryland Short Form Merger Notice to the record holders and beneficial owners of Common Stock in accordance with applicable Law. Parent and Acquisition shall cause the Offer Documents to comply as to form in all respects with the requirements of the Exchange Act, the applicable rules and regulations of the New York Stock Exchange and any other applicable Laws. Each of Parent, Acquisition and the Company will promptly correct any information provided by it for use in the Offer Documents if and to the extent that information is or becomes incomplete or inaccurate in any material respect, and Parent and Acquisition will supplement or amend the Offer Documents to the extent required by the Exchange Act, file the amended or supplemented Offer Documents with the SEC and, if required, disseminate the amended Offer Documents or supplements to the Company’s stockholders. The Special Committee and its terms counsel will be given a reasonable opportunity to review and accept for payment each Share validly tendered comment on the Offer Documents and not properly withdrawn pursuant any amendments or supplements to them before they are filed with the SEC or disseminated to the Company's stockholders, and Parent and Acquisition shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Special Committee and its counsel. In addition, Parent and Acquisition shall (i) provide the Special Committee and its counsel with copies of any written comments, (ii) inform them about any oral comments, that Parent or Acquisition 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, (iii) consult with the Special Committee and its counsel prior to responding to any such comments and (iv) provide the Special Committee with copies of all such written responses (or if oral responses, summaries thereof). Subject to the preceding sentence, Parent and Acquisition shall respond promptly following to any comments received from the acceptance of Shares for payment pursuant SEC or its staff with respect to the Offer pay Documents and take all other commercially reasonable actions necessary to resolve the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant issues raised therein, except to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay extent any comments received from the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant SEC or its staff with respect to the Offer shall Documents might require a delay or certain actions which might reasonably be subject only viewed as detrimental to the satisfactionCompany or its stockholders, or waiver by Parent or Merger Subsidiary, of each in which case no action may be taken without approval of the Offer ConditionsSpecial Committee.
(b) Merger Subsidiary expressly reserves Unless extended as required or permitted by this Agreement, the right to waive day on which the Tender Offer expires (the “Expiration Date”) will be no earlier than the 20th Business Day, nor later than the 75th day, after the day on which the Schedule TO (or any of amendment(s) thereto) that includes the Offer Conditions Documents (the “Offer TO”) is filed with the SEC, or, if the Tender Offer has been extended as required or permitted by this Agreement, the date to which the Tender Offer has been so extended. The time on the Expiration Date at which the Tender Offer will expire is referred to as the “Expiration Time.” Parent and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary Acquisition shall not terminate the Tender Offer prior to any scheduled expiration date Expiration Time (including any rescheduled Expiration Time) without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding Article 8.
(c) If at the foregoingscheduled Expiration Time any of the conditions set forth on Exhibit 1.2-E shall not have been satisfied or waived by Parent or Acquisition (if permitted hereunder), (x) Merger Subsidiary then Acquisition shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Acquisition to) extend the Tender Offer if at for one or more successive periods of up to 10 Business Days each in order to permit the scheduled or extended expiration date satisfaction of such conditions; provided, that Parent and Acquisition will not be required to extend the Tender Offer for more than three successive periods of 10 Business Days each and no extension of the Tender Offer any will be required to extend past the earlier of (A) the termination of this Agreement pursuant to Article 8 hereof, and (B) the Tender Outside Date (as defined below).
(d) Subject to the satisfaction or waiver of the conditions to the Tender Offer shall not be satisfied or waivedset forth on Exhibit 1.2-E, from time to time until such conditions are satisfied Acquisition will (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it Acquisition to), promptly after the Expiration Time (and in any event in compliance with Rule 14e-1(c) under the Exchange Act), accept for payment and pay for, as promptly as practicable after for all the expiration shares of the Offer, all Shares (1) Common Stock validly tendered and not properly withdrawn pursuant to the Tender Offer and (2) on or before the applicable Expiration Time. Subject to Section 2.10(c), the Tender Offer Price payable in respect of each share of Common Stock validly tendered and not properly withdrawn pursuant to the Tender Offer shall be paid net to the seller in cash, without interest. Acquisition will not modify or waive the condition in paragraph (a) on Exhibit 1.2-E to reduce the Minimum Condition. In addition, Acquisition will not, without the prior consent of the Company, (i) decrease the Tender Offer Price, (ii) decrease the number of shares of Common Stock being solicited in the Subsequent Offering Period Tender Offer, (iii) change the date form of consideration payable in the Tender Offer, (iv) modify, amend or add to the conditions set forth on Exhibit 1.2-E, including amending or waiving the Minimum Condition, (v) add any condition to the Tender Offer or (vi) extend the Expiration Date to a day which is more than 75 days after the day on which Shares are first accepted for paymentthe Offer TO is filed with the SEC, except that (A) if the Tender Offer is modified to increase the Tender Offer Price or in any other manner permitted by this Agreement, the “Acceptance Date”).
(c) As promptly as practicable Expiration Date may be extended until 10 Business Days after the date hereof, but in no event later than three Business Days following the day on which Acquisition makes a public announcement of the execution modification, (B) if anyone other than Acquisition makes a tender offer for shares of this AgreementCommon Stock before the Tender Offer expires, Merger Subsidiary shallAcquisition may extend the Expiration Date until not later than 10 Business Days after the other tender offer expires, (C) if the Company delivers a Superior Proposal Notice (as defined below), Parent may extend the Expiration Date until not later than 10 Business Days after the last day on which Parent is permitted under Section 8.1(f) to deliver a Price Increase Notice (as defined below), or the last day of the two Business Day negotiation period under Section 8.1(g), and shall cause its Affiliates toif Parent delivers a Price Increase Notice by the last day permitted under Section 8.1(f), or if a Superior Proposal Notice given under Section 8.1(g) is withdrawn without this Agreement terminating, Parent may extend the Expiration Date until not later than 10 Business Days (ior such longer period as is required by applicable SEC rules or by law) file after the day on which Parent delivers the Price Increase Notice or the Superior Proposal Notice under Section 8.1(g) is withdrawn (or until such later date as is agreed upon by the Company, with the SEC an amendment to approval of the Schedule TOSpecial Committee, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”by Parent), and (iiD) if Acquisition is prevented by an order of a court or other governmental agency from accepting shares of Common Stock which are tendered in response to the extent required Tender Offer, Acquisition may extend the Expiration Date until not later than 10 Business Days after Acquisition is able to accept shares of Common Stock without violating any order of any court or other governmental agency. Acquisition may extend the Tender Offer for a subsequent offer period after the Expiration Date as permitted by applicable U.S. federal securities lawsRule 14d-11 under the Exchange Act.
(e) If at least two Business Days before the scheduled Expiration Date, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause delivers a Superior Proposal Notice to Parent and Acquisition as described in clause (iii) of Section 8.1(f), the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given Expiration Date will automatically be extended to the stockholders of fourth Business Day after the Company, 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 day on which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of delivers the Superior Proposal Notice to Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to compliance with the provisions hereofapplicable requirements of the Exchange Act.
(f) In the event that this Agreement is terminated pursuant to Article 8, promptly respond Acquisition shall (and Parent shall cause Acquisition to) (i) within one Business Day after such termination, terminate the Tender Offer, (ii) not acquire any shares of Common Stock pursuant to such commentsthe Tender Offer and (iii) cause any depository acting on behalf of Acquisition to return, in accordance with applicable Law, all tendered shares of Common Stock to the record holders thereof.
Appears in 2 contracts
Sources: Merger Agreement (Javelin Mortgage Investment Corp.), Agreement and Plan of Merger (Armour Residential REIT, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate been terminated in accordance with Article VII, then (i) not later than the Offer pursuant to any first Business Day after execution of this Agreement, Parent and the conditions set forth in Annex ICompany shall issue separate public announcements regarding the execution of this Agreement and (ii) Merger Sub shall, as promptly soon as practicable after the date hereofpracticable, but in no event later than three five Business Days following from and after the public date of such announcement, including the date of announcement as the first Business Day in accordance with Rule 14d-2 under the Exchange Act, commence (within the meaning of Rule 14d-2(a) of the execution of this Agreement, Merger Subsidiary shall amend Exchange Act) the Offer to (i) increase purchase all of the purchase price to $6.50 per Share (outstanding shares of Company Common Stock at the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the Price Per Share. The initial expiration date of the Offer shall be midnight (New York City time) on the twentieth Business Day from and after the date that the Offer is ten commenced, including the date of commencement as the first Business Days (for this purpose calculated Day in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject made pursuant to an Offer to Purchase and related Letter of Transmittal in form reasonably satisfactory to the condition that there Company and containing terms and conditions set forth in this Agreement. The obligation of Merger Sub to accept for payment and pay for shares of Company Common Stock tendered pursuant to the Offer shall be validly tendered in accordance with the terms of the Offer prior subject only to the expiration date of the Offer and not withdrawn, a (i) there being at least that number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents shares of Company Common Stock representing a majority of the total number issued and outstanding shares of Shares outstanding Common Stock on a fully-fully diluted basis, without regard basis on the date such shares are purchased pursuant to whether any convertible or exchangeable securities are then vested and exercisable the Offer (the “Minimum Condition”"MINIMUM SHARES") validly tendered and not withdrawn prior to the expiration of the Offer (the "MINIMUM CONDITION") and to (ii) the satisfaction of the other conditions set forth in Annex I A hereto, any of which conditions may be waived by Merger Sub in its sole discretion; PROVIDED, HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. 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 will (i) decrease the Price Per Share payable in the Offer, (ii) decrease the number of shares of Company Common Stock sought pursuant to the Offer or change the form of consideration payable in the Offer, (iii) change or amend the conditions to the Offer set forth in ANNEX A hereto or impose additional conditions to the Offer, (iv) change the expiration date of the Offer or (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 Offer any conditions to the Offer have not been satisfied or waived, Merger Sub may, and at the request of the Company shall, from time to time, extend the expiration date of the Offer for up to 5 additional Business Days (but in no other conditionsevent shall Merger
(1) the conditions to the Offer shall have been satisfied or waived and (2) the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent more than 50% but less than 90% of the total issued and outstanding shares of Company Common Stock on a fully diluted basis; PROVIDED, HOWEVER, that in no event shall the extension permitted under the foregoing clause (y) exceed, in the aggregate, 10 Business Days. Subject Notwithstanding anything to the contrary in this Agreement, Parent may extend the Offer during (but only to the end of) the period in which the Company is attempting to cure a breach pursuant to Section 7.1(h). Parent and Merger Sub will, subject to the terms and conditions of this Agreement, including use their best efforts to consummate the Offer. Assuming the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of all the conditions to the Offer shall not be satisfied or waivedset forth in ANNEX A hereto, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the terms and conditions of the Offerthis Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in as soon as permitted under applicable law, recognizing that the Subsequent Offering Period (parties wish to close as expeditiously as possible following expiration or termination of the date waiting period under the HSR Act. Parent shall provide, or cause to be provided, to Merger Sub, on which Shares are first accepted for paymenta timely basis, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement funds necessary to purchase any shares of the execution of this Agreement, Company Common Stock that Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment Sub becomes obligated to purchase pursuant to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsOffer.
Appears in 2 contracts
Sources: Merger Agreement (Rental Service Corp), Merger Agreement (Rental Service Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article VIII and none of the events or conditions set forth in Annex IA (other than clauses (b), (f), (h) and (i)) shall have occurred and be existing, Cardinal Health shall cause Subcorp to commence, and Subcorp shall 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”)), as promptly as reasonably practicable after the date hereof, but of this Agreement and in no any event later than three Business Days following within 10 business days after the public announcement of the execution date of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to Cardinal Health shall cause Merger Subsidiary) Subcorp to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer Subcorp shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offerpayment, all Shares (1) shares of ALARIS Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date (as defined in Section 1.1(c)) at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment all additional shares of ALARIS Common Stock validly tendered during any subsequent offering period to the extent Cardinal Health and Subcorp determine to provide a subsequent offering period in connection with the Offer, provided Cardinal Health and Subcorp are permitted to do so pursuant to Section 1.1(c). Subcorp shall not accept for payment any shares of ALARIS Common Stock tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the Expiration Date such number of shares of ALARIS Common Stock that satisfy the Minimum Condition (2) validly as defined in Annex A). Subcorp expressly reserves the right to increase the Per Share Amount and to waive any condition of the Offer, except the Minimum Condition. Without the prior written consent of ALARIS, Subcorp shall not decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of shares of ALARIS Common Stock sought to be purchased in the Offer, impose conditions to the Offer in addition to those set forth in Annex A, change or waive the Minimum Condition or, except as provided in Section 1.1(c), extend the expiration of the Offer beyond the initial Expiration Date, or amend any other term of the Offer in a manner materially adverse to the ALARIS Stockholders. The Per Share Amount shall be paid less any required withholding of Taxes (as defined in Section 5.12(h)), upon the terms and subject to satisfaction or waiver of the conditions of the Offer set forth in Annex A. ALARIS agrees that no shares of ALARIS Common Stock held by ALARIS or any of its subsidiaries will be tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(cb) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and Subcorp shall cause its Affiliates to, (i) file with the SEC an amendment Securities and Exchange Commission (the “Commission”) a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer on the date the Offer is commenced, which shall include a revised an offer to purchase purchase, form of transmittal letter and form of letter notice of transmittal reflecting the terms and conditions set forth in this Agreement guaranteed delivery (collectively, together with any supplements or amendments or supplements thereto, collectively, the “Offer Documents”), ) and (ii) use its reasonable best efforts to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them ALARIS Stockholders in accordance in all material respects with the SEC applicable requirements of the United States federal securities laws. Cardinal Health and Subcorp will use their respective reasonable best efforts to comply in all material respects with the 1934 Act applicable requirements of the United States federal securities laws. The information provided and the rules to be provided by ALARIS, Cardinal Health and regulations thereunder and other applicable Law and that Subcorp for use in the Offer DocumentsDocuments shall not, when on the date filed with the SEC Commission and on the date first published, published or sent or given to holders of shares of ALARIS Common Stock (the stockholders of “ALARIS Stockholders”), as the Companycase may be, 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 Parent and Merger subsidiary shall have no obligation representation is made by Cardinal Health with respect to any the information supplied by ALARIS for inclusion in the Offer Documents supplied by the Company or its Representatives in writing)Documents. Each of ParentALARIS, Merger Subsidiary Cardinal Health and the Company agrees Subcorp each agree promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Cardinal Health further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC Commission and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and the ALARIS Stockholders to the extent required by applicable U.S. United States federal securities laws. The Company ALARIS shall promptly furnish to Cardinal Health or Subcorp all information concerning ALARIS that is required or reasonably requested by Cardinal Health or Subcorp in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). ALARIS and its counsel shall be given a reasonable the opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed sufficiently in advance of filing with the SEC Commission or dissemination to the ALARIS Stockholders.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, on the date that is 20 business days after the date hereof the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an “Expiration Date”); provided, however, that, without the consent of ALARIS, Subcorp may (Bi) on extend the Offer for one or more periods of not more than five business days not to exceed an aggregate of 15 business days if, at the scheduled Expiration Date, any correspondence of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Commission or the staff of the Commission (the “SEC Staff”) thereof applicable to the Offer; or (iii) extend the Offer for one subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three to 20 business days in order to acquire at least 90% of the outstanding shares of ALARIS Common Stock or otherwise. Upon the written request of ALARIS, Cardinal Health agrees to cause Subcorp to extend the Offer for one or more periods not to exceed an aggregate of 15 business days, if, as of any Expiration Date, all of the conditions of the Offer are not satisfied, but such conditions are reasonably capable of being satisfied in such period. Cardinal Health and Subcorp shall comply with the SEC (including comment response letters) concerning obligations respecting prompt payment and announcement under the Offer or Exchange Act, and, without limiting the Offer Documentsgenerality of the foregoing, Subcorp shall, and Merger Subsidiary Cardinal Health shall give reasonable cause Subcorp to, accept for payment, and good faith consideration to any comments made by the Company pay for, all shares of ALARIS Common Stock validly tendered and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect not withdrawn pursuant to the Offer Documents promptly, but in no event later than twenty-four hours, after promptly following the receipt acceptance of such comments, and, subject the shares of ALARIS Common Stock for payment pursuant to the provisions hereof, promptly respond to such commentsOffer and this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Alaris Medical Systems Inc), Merger Agreement (Cardinal Health Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise been terminated in accordance with Section 8.1, subject to a right to terminate the terms and conditions of this Agreement, as promptly as practicable (and in any event within 10 Business Days) after the date hereof, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase for cash all Shares (other than Restricted Stock) at the Offer Price, subject to:
(i) there being validly tendered in the Offer and not withdrawn prior to any then scheduled Expiration Date (as defined below) that number of Shares which, together with the Shares then beneficially owned by Parent or Purchaser (if any), represents in the aggregate a majority of such Shares outstanding on a fully diluted basis on the date of purchase (where “on a fully diluted basis” means the number of Shares outstanding, together with the Restricted Stock and the shares of Common Stock which the Company may be required to issue pursuant to the exercise, conversion or exchange of any Company Options, RSUs, Equity Interests or other rights to acquire Shares then outstanding, whether or not vested or then exercisable) (the “Minimum Condition”); and
(ii) the satisfaction, or waiver by Parent or Purchaser, of the other conditions and requirements set forth in Annex I.
(b) The obligation of Purchaser to accept for payment and pay for any Shares validly tendered and not withdrawn pursuant to the Offer shall be subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Purchaser, of the other conditions and requirements set forth in Annex I. Subject to the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Parent or Purchaser of the other conditions and requirements set forth in Annex I, Purchaser shall (and Parent shall cause Purchaser to) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after the date hereof, but Purchaser is legally permitted to do so under applicable Law. The Offer Price payable in no event later than three Business Days following the public announcement respect of the execution of this Agreement, Merger Subsidiary shall amend each Share validly tendered and not withdrawn pursuant to the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), shall be paid net to the seller in cash, and without interest, subject to withholding as provided in Section 2.2(e).
(iic) provide that the conditions to the The Offer shall be as made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions and requirements set forth in Annex I I. Parent and Purchaser expressly reserve the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that no other conditions unless otherwise provided by this Agreement or as previously approved by the Company in writing, Purchaser shall apply, not (i) decrease the Offer Price; (ii) change the form of consideration payable in the Offer; (iii) provide reduce the number of Shares to be purchased in the Offer; (iv) impose conditions or requirements to the Offer that are different than or in addition to the expiration date conditions and requirements set forth in Annex I; (v) amend or waive the Minimum Condition; (vi) amend any other terms of the Offer set forth in this Agreement in any manner materially adverse to the holders of Shares, or (vii) extend the expiration of the Offer in a manner other than set forth at Section 1.1(e) hereof.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall be expire at midnight (New York City time) on the date that is ten 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing commencement (within the meaning of such amendmentRule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of date to which the conditions set forth in Annex I Offer has been so extended (the “Offer Conditions”)Initial Expiration Date, promptly after or such later date to which the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered Initial Expiration Date has been extended pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant this Agreement, is referred to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Expiration Date”).
(ce) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “The Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity extended from time to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.as follows:
Appears in 2 contracts
Sources: Merger Agreement (Teradyne, Inc), Merger Agreement (Nextest Systems Corp)
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex Ithis ---------- Agreement, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following five business days after the public announcement of the execution Offer, Acquisition Sub shall commence the Offer. The obligation of this Agreement, Merger Subsidiary shall amend Acquisition Sub to commence the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”)and accept for payment, net and pay for, any shares of Company Common Stock or Preference Stock tendered pursuant to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I Exhibit A (any of which may be waived in whole or in part by Acquisition Sub in its sole discretion) and to no other conditions. Subject to the terms and conditions of this Agreement. Acquisition Sub expressly reserves the right to modify the terms of the Offer, including except that, without the prior satisfaction consent of the Company, Acquisition Sub shall not (i) reduce the number of shares of Company Common Stock or waiver of Preference Stock to be purchased in the Offer, (ii) reduce the Common Stock Offer Price or the Preference Stock Offer Price, (iii) modify or add to the conditions set forth in Annex I Exhibit A, (iv) except as provided in the “Offer Conditions”)next sentence, promptly after extend the later Offer, (v) change the form of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to consideration payable in the Offer and or (yvi) the earliest date as of which each amend any other term of the Offer Conditions has been satisfiedin a manner adverse in any material respect to the holders of Company Common Stock or Preference Stock. Notwithstanding the foregoing, or waived by Parent or Merger SubsidiaryAcquisition Sub may, Merger Subsidiary shall without the consent of the Company, (and Parent shall cause Merger Subsidiary toi) consummate extend the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to beyond any scheduled expiration date (the Offer and promptly initial scheduled expiration date being 20 business days following commencement of the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interestOffer) for each Share validly tendered and a period not properly withdrawn pursuant to exceed 20 business days, if at any scheduled expiration date of the Offer. The , any of the conditions to Acquisition Sub's obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, shares of Company Common Stock or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Preference Stock shall not be satisfied or waived, from until such time to time until as such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and , (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “"SEC”") or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend Offer and (iii) terminate the Offer beyond without prejudice to any of its and Parent's rights under this Agreement, including to proceed with the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of with, and subject to the 1934 Actterms and conditions of, this Agreement. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary shall, and Parent Acquisition Sub shall cause it to, accept for payment payment, and pay for, as promptly as practicable after the expiration all shares of the Offer, all Shares (1) Company Common Stock and Preference Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted that Acquisition Sub becomes obligated to accept for payment, and pay for, pursuant to the “Acceptance Date”Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act (as defined below).
(cb) As promptly as practicable after On the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, Parent and Acquisition Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule 14D-1 with respect to the Schedule TOOffer, which shall include a revised contain an offer to purchase and form of a related letter of transmittal reflecting and summary advertisement (such Schedule 14D-1 and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), . Parent and (ii) to the extent required by applicable U.S. federal securities laws, cause Acquisition Sub agree that the Offer Documents shall comply as to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply form in all material respects with the 1934 Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder and other applicable Law and that (the Offer Documents"Exchange Act") and, when filed with the SEC and on the date first published, sent or given to the stockholders of 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 (misleading, except that no representation is made by Parent and Merger subsidiary shall have no obligation or Acquisition Sub with respect to any information in the Offer Documents supplied by regarding the Company or its Representatives subsidiaries or provided by the Company for inclusion or incorporation by reference in writing)the Offer Documents. Each of Parent, Merger Subsidiary Acquisition Sub and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts each of Parent and Acquisition Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and upon the Offer Documents each time before any such document is filed and all amendments and supplements thereto prior to their filing with the SEC after or dissemination to stockholders of the date hereof Company. Parent and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration Acquisition Sub agree to any comments made by provide the Company and its counsel. Parent counsel any comments or requests for additional information Parent, Acquisition 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 Merger Subsidiary shall provide the Company and its counsel an opportunity to participate, including by way of discussion with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to or its staff, in the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt response of such comments, and, subject to the provisions hereof, promptly respond Parent and/or Acquisition Sub to such comments.
(c) Parent shall provide or cause to be provided to Acquisition Sub on a timely basis the funds necessary to accept for payment, and pay for, any shares of Company Common Stock and Preference Stock that Acquisition Sub accepts for payment, and becomes obligated to pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Bird Corp), Merger Agreement (Bi Expansion Ii Corp)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate On the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I terms and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including within seven (7) business days from the date hereof, the Buyer shall (or 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 to purchase any and all outstanding shares of Company Common Stock for consideration per share equal to $5.80 (the “Offer Consideration”) in cash. On the terms and subject to the prior satisfaction or waiver of the conditions set forth in Annex I of the Offer and this Agreement, the Buyer shall (the “Offer Conditions”), promptly after the later of (xor shall cause Merger Sub to) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as all shares of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and promptly following as soon as practicable after the acceptance expiration of Shares for payment pursuant to the Offer and shall pay the Offer Price Consideration for all such shares of Company Common Stock promptly after acceptance. The obligation of the Buyer (without interesteither directly or through Merger Sub) to commence the Offer and to accept for each Share payment and pay the Offer Consideration for shares of Company Common Stock validly tendered in the Offer and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditionsconditions set forth in Annex I to this Agreement (which is annexed to this Amendment).
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended The initial expiration date of the Offer shall be the twentieth (20th) business day after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the Exchange Act). If on or prior to any then scheduled expiration date of the Offer, all of the conditions to the Offer (including the Minimum Condition and all other conditions and requirements set forth in Annex I) shall not be have been satisfied, or waived by the Buyer or Merger Sub if permitted hereunder, the Buyer shall (and shall cause Merger Sub to) extend the Offer for periods of up to ten (10) business days each until the earlier of (x) the date on which the Minimum Condition has been met and all of the conditions and requirements set forth in Annex I are satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) waived or waived; and (y) Merger Subsidiary the date on which this Agreement is terminated in accordance with Article VIII. The Buyer expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, the Buyer shall not:
(i) change the form of consideration payable in the Offer, decrease the Offer Consideration, or decrease the number of shares of Company Common Stock sought pursuant to the Offer;
(ii) extend the expiration date of the Offer except (A) as required by this Agreement or applicable law (including for any period required by any rule, regulation, interpretation or position of the U.S. United States Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable staff thereof), or (B) in connection with an increase in the consideration to be paid pursuant to the Offer; provided that in no event shall Merger Subsidiary be required Offer so as to extend comply with applicable rules and regulations of the SEC;
(iii) waive the Minimum Condition;
(iv) amend any term of the Offer beyond in any manner adverse to holders of shares of Company Common Stock; or
(v) impose any condition to the End Date Offer not set forth in Annex I. Neither the Buyer nor Merger Sub shall terminate or withdraw the Offer prior to the then scheduled expiration of the Offer unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)is validly terminated in accordance with its terms, in which case the Buyer shall (or shall cause Merger Subsidiary shall be required to extend Sub to) irrevocably and unconditionally terminate the Offer beyond promptly (but in no event more than one (1) business day) after such termination of this Agreement. The Buyer may, without the End Date. Following expiration consent of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, elect to provide a subsequent offering period (“Subsequent Offering Period”) for the Offer in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements Exchange Act following its acceptance for payment of Rule 14d-11, and upon the terms and subject to the conditions shares of Company Common Stock in the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after On the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, and the Buyer shall (or shall cause its Affiliates Merger Sub to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO, which TO shall include a revised contain an offer to purchase and (the “Offer to Purchase”), a form of the related letter of transmittal reflecting transmittal, and ancillary documents and instruments pursuant to which the terms and conditions set forth in this Agreement Offer will be made (collectively, together with any supplements or amendments or supplements thereto, the “Offer Documents”), . The Buyer and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and Sub shall provide the Company agrees that they shall cause and its counsel a reasonable opportunity to review and comment on the Schedule TO and the other Offer Documents filed by any of them prior to the filing thereof with the SEC SEC, and the Buyer and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). The Buyer and Merger Sub agree that the Offer Documents shall comply in all material respects with the 1934 Act and requirements of applicable U.S. federal securities laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date first filed with the SEC and on the date first published, sent or given to the stockholders of 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 (misleading, except that Parent and no covenant, agreement, representation or warranty is made by the Buyer or Merger subsidiary shall have no obligation Sub with respect to any information in the Offer Documents supplied by the Company or any of its Representatives stockholders for inclusion or incorporation by reference in writing)the Offer Documents. The Buyer and Merger Sub shall take all steps necessary to cause the Offer Documents to be disseminated to holders of shares of Company Common Stock, as and to the extent required by applicable U.S. federal securities laws. Each of Parentthe Buyer, Merger Subsidiary Sub and the Company agrees shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and the Buyer and Merger Sub shall cause its Affiliates totake all steps necessary to amend or supplement the Schedule TO and, use their respective reasonable best efforts as applicable, the Offer Documents and to cause the Schedule TO as so corrected amended and supplemented to be filed with the SEC and the Offer Documents as so corrected amended and supplemented to be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, Buyer and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments Parentthe Buyer, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt thereof, shall provide the Company and its counsel a reasonable opportunity to participate in the formulation of any response to any such comments of the SEC or its staff (including a reasonable opportunity to review and comment on any such response, which comments the Buyer and Merger Sub shall give reasonable and good faith consideration), and shall provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of the Buyer or Merger Sub or their counsel.
(d) The Buyer shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(e) The Buyer and Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as the Buyer OR Merger Sub, as the case may be, reasonably determines that it is required to deduct and withhold with respect to the making of such commentspayment under the Internal Revenue Code of 1986, andas amended (the “Internal Revenue Code”), subject to the provisions hereof, promptly respond to such commentsor under any other applicable law.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Skyworks Solutions, Inc.), Agreement and Plan of Merger (Advanced Analogic Technologies Inc)
The Offer. (a) Provided that nothing Subject to the provisions contained in the following sentence, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date of this Agreement. If the Company: (i) shall have occurred that would give rise to a right to terminate fully cooperated with Parent in connection with the Offer pursuant and the preparation of the Offer Documents, including by promptly providing to Parent any comments regarding the Offer Documents from the Company and its advisors, and (ii) shall be prepared to file with the SEC, and to disseminate to holders of Company Common Stock, the Schedule 14D-9 on the date Parent files the Offer Documents with the SEC, then Parent shall cause Merger Sub to, and Merger Sub shall, commence the Offer within seven (7) Business Days after the date of this Agreement; provided, however, that Merger Sub shall not be required to commence the Offer if (w) any of the conditions set forth in clauses (a), (b), (c), (g), (h), (j), (k), (l) and (n) of Annex II shall not be satisfied, as promptly as practicable after or (x) the Company shall not be prepared to file immediately with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 (the date hereofon which Merger Sub commences the Offer, but within the meaning of Rule 14d-2 under the Exchange Act, is referred to in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (Agreement as the “Offer PriceCommencement Date”). The obligation of Merger Sub (and the obligation of Parent to cause Merger Sub) to accept for payment, net to the seller in cashand pay for, (ii) provide that the conditions any shares of Company Common Stock validly tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform subject to the requirements satisfaction of this Agreement. The Offer shall be subject to or (if permitted) waiver of (y) the condition that there shall be validly tendered in accordance with the terms (not including any shares of the Offer prior Company Common Stock validly tendered pursuant to the expiration date of the Offer procedures for guaranteed delivery) and not withdrawn, withdrawn a number of Shares shares of Company Common Stock that, together with the Shares then any shares of Company Common Stock owned by Parent and its Affiliatesor Merger Sub immediately prior to the Acceptance Time, represents a majority more than 50% of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable Adjusted Outstanding Share Number (the “Minimum Condition”), and (z) and to the other conditions set forth in Annex I hereto (the Minimum Condition and the other conditions set forth in Annex I are referred to no collectively as the “Offer Conditions”). For purposes of this Agreement, the “Adjusted Outstanding Share Number” shall be the sum of: (A) the aggregate number of shares of Company Common Stock issued and outstanding immediately prior to the Acceptance Time, plus (B) an additional number of shares up to (but not exceeding) the aggregate number of shares of Company Common Stock issuable upon the conversion, exchange or exercise, as applicable, of all options, warrants and other conditionsrights to acquire, or securities convertible into or exchangeable for, Company Common Stock that are outstanding immediately prior to the Acceptance Time (other than potential (but not actual) dilution attributable to the Top-Up Option). Subject to the Offer Conditions and the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I Parent shall cause Merger Sub to, and Merger Sub shall, (the “Offer Conditions”), promptly after the later of (x1) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares all shares of Company Common Stock validly tendered (and not withdrawn) pursuant to the Offer as soon as practicable after Merger Sub is permitted to do so under applicable Legal Requirements, and (y2) the earliest date as of which each of pay the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer Price in accordance with its terms and accept exchange for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance share of Shares Company Common Stock accepted for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (U.S. Renal Care Inc), Merger Agreement (Dialysis Corp of America)
The Offer. (a) Provided Subject to the conditions of this Agreement, as promptly as practicable but in no event later than ten (10) Business Days after the date that nothing the Company executes this Agreement, Merger Sub shall, and Parent shall have occurred that would give rise to a right to terminate cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Exchange Act. 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 any of the Offer are subject only to the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the A hereto. The initial expiration date of the Offer shall be midnight the 20th Business Day following the commencement of the Offer (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with determined using Rule 14d-1(g)(3) under of the Exchange Act) following SEC). Merger Sub expressly reserves the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate right to conform waive any condition to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with or modify the terms of the Offer prior 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 expiration date Offer, (ii) reduce the Offer Price, (iii) waive or modify the Minimum Tender Condition (as defined in Annex A) to the extent that Merger Sub or Parent would purchase 50% or less of the Offer and not withdrawnFully Diluted Shares or to increase the Minimum Tender Condition, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard (iv) add to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant A or modify any condition set forth in Annex A in any manner adverse to the Offer and Company Common Stockholders, (yv) extend the earliest Offer, or (vi) modify the form of consideration payable in the Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, (i) extend the Offer, if at the scheduled expiration date as of which each of the Offer Conditions has been any of the conditions (other than the Minimum Tender Condition) to Merger Sub’s obligation to purchase shares of Company Common Stock are not satisfied, until such time as such conditions are satisfied or waived by Parent or Merger Subsidiarywaived, Merger Subsidiary shall including, without limitation, HSR Clearance, (and Parent shall cause Merger Subsidiary toii) consummate extend the Offer in accordance with its terms and accept for payment each Share validly tendered and a period of not properly withdrawn pursuant to more than ten (10) Business Days beyond the Offer and promptly following initial expiration date of the acceptance Offer, if on the date of Shares for payment pursuant to such extension less than 90% of the Offer pay the Offer Price (without interest) for each Share outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (Biii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer and (iv) extend the Offer; provided , one time only, for any reason for a period of not more than fifteen (15) Business Days beyond the latest expiration date that in no event would otherwise be permitted under clause (i), (ii) or (iii) of this sentence. In addition 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 Subsidiary be required to Sub to, extend the Offer beyond at the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration request of the OfferCompany for one period of not more than twenty (20) Business Days. In addition, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide Sub may make available a “subsequent offering period (“Subsequent Offering Period”) period,” in accordance with Rule 14d-11 of the 1934 ActSEC, of not less than ten (10) Business Days. Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, (A) as soon as practicable after becoming obligated to purchase shares of Company Common Stock pursuant to the Offer, accept for payment and pay for, as promptly as practicable after the expiration for all shares of the Offer, all Shares (1) Company Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted of acceptance for payment, the “Acceptance Date”).
, which acceptance may be by oral notice to the Paying Agent, (cB) As promptly as practicable after on the closing date hereof, but in no event later of the Offer (which shall be not more than three five (5) Business Days following the public announcement Acceptance Date), deposit or cause to be deposited with the Paying Agent, cash in U.S. dollars sufficient to pay the aggregate Offer Price for all such accepted shares of Company Common Stock and (C) as soon as practicable following such deposit, cause the Paying Agent to pay for all shares of Company Common Stock so accepted for payment.
(b) On the date of commencement of the execution of this AgreementOffer, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment and deliver to the Company and its counsel a Tender Offer Statement on Schedule TOTO with respect to the Offer, which shall include a revised contain an offer to purchase and form of a related letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary Sub and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and each of Parent and Merger Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company Common Stockholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The To the extent practicable, the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide the Company and its counsel as promptly as practicable with copies of any written or oral comments correspondence that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, as promptly as practicable after the receipt of such those comments, and, subject .
(c) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the provisions hereofOffer.
(d) Subject to Section 5.1 of this Agreement, promptly respond if, between the date of this Agreement and the Acceptance Date, the outstanding shares of Company Common Stock shall have been changed into a different number of shares or a different class, solely by reason of any stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination or exchange of shares or any other similar transaction, the Offer Price shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, reverse split, combination or exchange of shares or any other similar transaction and to provide to the Company Common Stockholders the same economic effect as contemplated by this Agreement prior to such commentsaction.
Appears in 2 contracts
Sources: Merger Agreement (AMICAS, Inc.), Merger Agreement (Merge Healthcare Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article X hereof and so long as none of the conditions events set forth in Annex IA hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following the public announcement of fifth business day after the execution date of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its AffiliatesMerger Sub shall, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary Sub to) consummate , commence the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to at the Offer and promptly Price. The initial expiration date for the Offer shall be the twentieth business day following the acceptance commencement of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation obligations of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Sub to accept for payment, payment and to pay the Offer Price (without interest) for, each Share validly for any shares of Common Stock tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfactionTender Offer Conditions, or waiver any of which may be waived by Parent or Merger SubsidiarySub in their sole discretion; PROVIDED, of each HOWEVER, that Merger Sub shall not waive the Minimum Condition without the prior written consent of the Company. The Tender Offer Conditions.
(b) Conditions are for the sole benefit of Parent and Merger Subsidiary Sub and may be asserted by Parent and Merger Sub regardless of the circumstances giving rise to any such Tender Offer Conditions or, except as expressly reserves set forth herein, may be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub expressly reserve the right to waive any modify the terms of the Offer; PROVIDED HOWEVER, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock to be purchased in the Offer, (ii) reduce the Offer Conditions and Price, (iii) modify or add to the Tender Offer Conditions, (iv) change the form of consideration payable in the Offer or (v) make any other changes change in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner which is materially adverse to the stockholders holders of Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without the consent of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary toA) extend the Offer Offer, if at the then scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligations to purchase the Offer shall shares of Common Stock have not be been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, (B) extend the Offer from time to time until such conditions are satisfied up to a maximum of an aggregate of 30 days beyond the first day all of the Tender Offer Conditions have been met, and/or (other than conditions which by their nature are to be satisfied on the Acceptance DateC) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided . Notwithstanding the foregoing, (x) the Offer may not, without the Company's written consent, be extended beyond the date of termination of this Agreement pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's prior written consent, be extended pursuant to clause (A) above if the failure to satisfy any condition was caused by a material breach by Parent or Merger Sub of any of their representations, warranties, covenants or agreements set forth in this Agreement. Notwithstanding any thing to the contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to any scheduled expiration date of the Offer, the Regulatory Conditions (as defined in no event Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the Minimum Condition) shall then be satisfied, at the request of the Company, Merger Subsidiary be required to Sub shall extend the Offer beyond from time to time, subject to the End Date unless Parent right of Parent, Merger Sub or Merger Subsidiary is not then permitted the Company to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Dateterms hereof. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon Upon the terms and subject to the conditions of the Offer, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn. Parent shall provide, or cause to be provided, to Merger Sub on a timely basis all funds necessary to accept for payment payment, and pay for, as promptly as practicable after the expiration all shares of the Offer, all Shares (1) validly tendered and not withdrawn Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Bison Acquisition Corp), Merger Agreement (Entertainment Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate been terminated in accordance with Article VIII, Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the Offer pursuant to any of the conditions set forth in Annex I, as promptly as reasonably practicable after the date hereof, but in no event later than three Business Days following five business days after the initial public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under hereof or the Exchange Act) following the filing day of such amendment, and (iv) make such other amendments as are necessary or appropriate Merger Sub's intention to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to commence the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Sub to accept for payment, payment and pay the Offer Price (without interest) for, each Share validly for shares of Company Common Stock tendered and not properly withdrawn pursuant to the Offer shall only be subject only to (i) the satisfactioncondition (the "Minimum Condition") that at least the number of shares of Company Common Stock (together with the shares of the Company Common Stock, or waiver if any, then owned by Parent or Merger Subsidiary, Sub) constituting a majority of each the then outstanding shares of Company Common Stock on a fully diluted basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer Conditions.
and (bii) the satisfaction or waiver of the other conditions set forth in Exhibit A. As used herein, "fully diluted basis" means issued and outstanding shares of Company Common Stock and shares of Company Common Stock subject to issuance under vested Options (as defined in Section 2.06(c)) and shares of Company Common Stock subject to issuance upon exercise of outstanding warrants, calls, subscriptions or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or securities convertible or exchangeable for such capital stock, but shall not include unvested Options. Merger Subsidiary Sub expressly reserves the right right, subject to compliance with the Exchange Act, to waive any of such condition, to increase the Offer Conditions Per Share Amount and to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without unless Parent and Merger Sub shall have obtained the prior consent written approval of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waivedCompany, (B) no change may be made that in the Offer which (i) decreases the Per Share Amount, (ii) changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends or adds (iii) reduces the maximum number of shares of Company Common Stock to be purchased in the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the CompanyOffer, (Civ) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of modifies the conditions to the Offer shall not be satisfied set forth in Exhibit A or waived, from time imposes conditions to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rulein addition to those set forth in Exhibit A, regulation(v) modifies or waives the Minimum Condition or (vi) except as provided in Section 1.01(b), interpretation or position extends the Offer. The Per Share Amount shall, subject to applicable withholding of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable taxes, be net to the Offer; provided that seller in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)cash, in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.of
Appears in 2 contracts
Sources: Merger Agreement (Superior Telecom Inc), Merger Agreement (Superior Telecom Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary the Parent shall amend the Offer to Existing Offer: (i) increase to provide that the purchase price consideration to $6.50 be paid per Share share of Company Common Stock pursuant to the Offer will be as calculated in accordance with Annex II hereto (the “"Offer Price”Consideration"), net to the seller in cash, ; (ii) provide that to designate the Purchaser as the offeror and to set November 29, 2001 (the "Initial Expiration Date"), as the expiration date for the Offer; and (iii) otherwise to reflect the terms and conditions of this Agreement. For purposes of this Agreement, the term "business day" shall mean any day, other than Saturday, Sunday or a federal holiday, and shall consist of the time period from 12:01 a.m. through 12:00 midnight Eastern time. The obligation of the Purchaser to accept for payment and pay for shares of Company Common Stock (including the related Company Rights) tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject only to the condition that there shall be validly tendered (other than by guaranteed delivery where actual delivery has not occurred) in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares shares of Company Common Stock that, together with the Shares shares of Company Common Stock then owned by the Parent and its Affiliatesand/or the Purchaser, represents at least a majority of the total number shares of Shares Company Common Stock outstanding on a fully-fully diluted basisbasis (after giving effect to the conversion or exercise of all outstanding options, without regard warrants and other rights to acquire, and securities exercisable or convertible into, Company Common Stock, whether any convertible or exchangeable securities are then vested and exercisable not exercised or converted at the time of determination, other than potential dilution attributable to the Company Rights) (the “"Minimum Condition”") and to the satisfaction or waiver by the Purchaser as permitted hereunder of the other conditions set forth in Annex I and to no other conditionshereto. Subject to Without limiting the terms and conditions of this Agreementforegoing, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each effective upon Consummation of the Offer Conditions has been satisfied(as defined in Section 1.4), or waived by Parent or Merger Subsidiary, Merger Subsidiary shall the holder of such Company Common Stock (including the related Company Rights) will sell and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant assign to the Offer Purchaser all right, title and promptly following interest in and to all of the acceptance shares of Shares for payment pursuant Company Common Stock tendered (including, but not limited to, such holder's right to the Offer pay the Offer Price (without interest) for each Share validly tendered any and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (all dividends and of Parent to cause Merger Subsidiary) to accept for paymentdistributions with a record date before, and pay the Offer Price (without interest) fora payment date after, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”date).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Northrop Grumman Corp /De/), Merger Agreement (Newport News Shipbuilding Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof, (but in no event later than three Business Days following five business days after the public announcement of the execution of this Agreementhereof), Merger Subsidiary Sub shall amend commence (within the Offer to meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (icollectively, the "Exchange Act")) increase the purchase price to $6.50 per Share a tender offer (the “Offer Price”)"Offer") for all of the outstanding shares of Company Common Stock (including the Company Preferred Rights) at a price of $20 per share of Company Common Stock, net to the seller in cashcash (such price, (ii) provide that or any such higher price per share as may be paid in the conditions Offer, being referred to herein as the "Offer shall be as set forth in Annex I and that no other conditions shall applyPrice"), (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawnOffer, a that number of Shares that, together with shares of Company Common Stock (excluding shares of Company Common Stock held in the Shares then owned by Parent and its Affiliates, Company's treasury) which represents at least a majority of the total number of Shares Company Common Stock outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable Fully Diluted Basis (the “"Minimum Condition”") and to the other conditions set forth in Annex I A hereto, and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms ("Fully Diluted Basis" means issued and outstanding Company Common Stock and Company Common Stock subject to issuance under the Existing Options). The obligations of Merger Sub to accept for payment each Share and to pay for any Company Common Stock validly tendered and not properly withdrawn pursuant on or prior to the expiration of the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver Minimum Condition and the other conditions set forth in Annex A hereto. The Offer shall be made by Parent or Merger Subsidiary, means of each of an offer to purchase (the "Offer Conditions.
(bto Purchase") Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in containing the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company set forth in its sole discretion) (A) this Agreement, the Minimum Condition may and the other conditions set forth in Annex A hereto. Merger Sub shall not be waived, (B) no change may be made that changes amend or waive the form of consideration to be paid, decreases Minimum Condition and shall not decrease the price per Share Offer Price or decrease the number of Shares sought in the Offershares of Company Common Stock sought, amends or adds to the Offer Conditions or amends amend any other term condition of the Offer in any manner adverse to the stockholders holders of the Company Common Stock without the prior written consent of the Company; provided, (C) however, that if on the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any initial scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any which shall be twenty business days after the date the Offer is commenced, the sole condition remaining unsatisfied is the failure of the conditions waiting period under the HSR Act to have expired or been terminated, Merger Sub shall extend the Offer shall not be satisfied or waived, expiration date from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on two business days after the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, waiting period under the HSR Act. Merger Subsidiary Sub shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay forCompany Common Stock tendered as soon as it is legally permitted to do so under applicable law; provided, as promptly as practicable after however, that if, immediately prior to the initial expiration date of the OfferOffer (as it may be extended), all Shares (1) validly the Company Common Stock tendered and not withdrawn pursuant to the Offer and (2) validly tendered in equals less than 90% of the Subsequent Offering Period (outstanding Company Common Stock, Merger Sub may extend the Offer two times for a period not to exceed ten business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date on which Shares are first accepted for payment, of the “Acceptance Date”)Offer.
(cb) As promptly soon as practicable after on the date hereofthe Offer is commenced, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment United States Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO14D-1"). The Schedule 14D-1 will include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement summary advertisement (collectively, together with any amendments or and supplements thereto, the “"Offer Documents”"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act and provisions of applicable federal securities laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date filed with the SEC and on the date first published, sent or given to the stockholders of the CompanyStockholders, 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 (misleading, except that no representation is made by Parent and or Merger subsidiary shall have no obligation Sub with respect to any information furnished by the Company to Parent or Merger Sub, in writing, expressly for inclusion in the Offer Documents. The information supplied by the Company to Parent or Merger Sub, in writing, expressly for inclusion in the Offer Documents supplied and by Parent or Merger Sub to the Company or its Representatives Company, in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates expressly for use inclusion in the Schedule TO 14D-9 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.
(c) Each of Parent and Merger Sub will take all steps necessary to cause the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Stockholders, in each case as and to the extent required by applicable U.S. federal securities laws. Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, will promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Parent and Merger Sub will take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the Stockholders, in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall be given a reasonable the opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time 14D-1 before any such document it is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. In addition, Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by Sub will provide the Company and its counsel. Parent and Merger Subsidiary shall provide , in the Company and its counsel form in which they are received, with any comments, whether written or oral comments oral, Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Walbro Corp), Agreement and Plan of Merger (Ti Group PLC)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and none of the events set forth in paragraphs (a)—(g) of Annex I hereto shall have occurred and be continuing, on the date that would give rise to a right to terminate is the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable 10th Business Day after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary MergerSub shall, and Parent shall amend cause MergerSub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to (i) increase purchase for cash all of the purchase price to $6.50 per Share (outstanding shares of Company Common Stock at the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date . The initial Expiration Date of the Offer shall be midnight (12 midnight, New York City time) on , at the date that is ten end of the 20th Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under Day following commencement of the Exchange Act) following the filing Offer. The obligations of such amendmentMergerSub to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform cause MergerSub to, accept for payment and to the requirements pay for any shares of this Agreement. The Offer shall be subject to the condition that there shall be Company Common Stock validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn, a validly withdrawn shall be subject only to (i) there being validly tendered and not validly withdrawn prior to the expiration of the Offer that number of Shares thatshares of Company Common Stock which, together with the Shares then when added to any shares of Company Common Stock already owned by Parent and its Affiliatesor any of the Parent Subsidiaries, if any, represents at least a majority of the total number shares of Shares Company Common Stock outstanding on a fullyFully-diluted basisDiluted Basis, without regard excluding shares of Company Common Stock tendered in the Offer pursuant to whether any convertible or exchangeable securities are then vested and exercisable guaranteed delivery procedures (the “Minimum Condition”) and (ii) the satisfaction or waiver (to the extent permitted under this Agreement) of the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreementhereto (collectively, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary MergerSub expressly reserves the right right, from time to time, to waive any of the Offer Conditions and or to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without the prior written consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) Company, MergerSub shall not (A) amend or waive the Minimum Condition may not be waivedCondition, (B) no change may be made that changes decrease the form of consideration to be paidOffer Price, decreases the price per Share or (C) decrease the number of Shares shares of Company Common Stock sought in the Offer, amends or adds (D) change the form of consideration payable in the Offer, (E) impose conditions to the Offer Conditions that are in addition to the Offer Conditions, (F) extend the Expiration Date of the Offer in any manner other than as permitted in this Section 1.01 or amends (G) amend any other term of the terms and conditions of the Offer in any manner adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01shares of Company Common Stock. Notwithstanding the foregoing, (xu) Merger Subsidiary if there shall (have been one or at the request more Extension Excluded Parties as of the CompanyExtension Excluded Party Notice Date and the Company shall have delivered to Parent the written notice identifying such Extension Excluded Party in accordance with Section 5.03(b), Parent MergerSub shall cause Merger Subsidiary to) extend the Offer until the first Business Day following the Cut-off Date, (v) if at on the scheduled or extended expiration date initial Expiration Date of the Offer or on any subsequent scheduled Expiration Date of the conditions to the Offer, all Offer Conditions shall not be have been satisfied or waived, MergerSub may, from time to time until time, in its sole discretion, extend the Offer for one or more periods of not more than five (5) Business Days each beyond such conditions are satisfied Expiration Date, provided, however, that MergerSub shall not be entitled to extend the Offer to any date occurring after the Termination Date, (other than conditions which by their nature are to be satisfied on the Acceptance Datew) or waived; and (y) Merger Subsidiary MergerSub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof or NASDAQ applicable to the Offer, (x) MergerSub shall extend the Offer for one or more periods of no more than five (5) Business Days each (or such longer period as the parties hereto agree) until the condition set forth in clause (ii) of the first paragraph of Annex I related to the HSR Act and Foreign Antitrust Laws is satisfied or waived; provided provided, however, that in no event shall Merger Subsidiary MergerSub be required to extend the Offer (1) beyond the End Termination Date unless or (2) at any time that Parent or Merger Subsidiary MergerSub is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)Article VIII, (y) if on any scheduled Expiration Date, the Minimum Condition is not satisfied but all other Offer Conditions are satisfied, then MergerSub shall extend the Offer on a single occasion for a five (5) Business Day period; provided, however, that in which case Merger Subsidiary no event shall MergerSub be required to extend the Offer (1) beyond the End Date. Following expiration of the OfferTermination Date or (2) at any time that Parent or MergerSub is permitted to terminate this Agreement pursuant to Article VIII, Merger Subsidiary shall, if requested by the Company, or and (z) MergerSub may, in its sole discretion, provide a “subsequent offering period period” in accordance with Rule 14d-11 under the Exchange Act (a “Subsequent Offering Period”) of not more than twenty (20) Business Days to meet the objective that there be validly tendered, in accordance with Rule 14d-11 the terms of the 1934 ActOffer, prior to the Expiration Date and not validly withdrawn, a number of shares of Company Common Stock, which when added to any shares of Company Common Stock already owned by Parent or any of the Parent Subsidiaries, represent at least 90% of the then outstanding shares of Company Common Stock at the Offer Closing (including following the exercise of the Top-Up Option at Parent or MergerSub’s option). In addition, MergerSub may increase the Offer Price and extend the Offer to the extent required by applicable Law in connection with such increase in each case in its sole discretion and without the Company’s consent. Subject to the foregoingprior satisfaction of the Minimum Condition and the prior satisfaction or waiver by Parent or MergerSub (to the extent permitted under this Agreement) of the other Offer Conditions, including MergerSub shall, and Parent shall cause MergerSub to, in accordance with the requirements terms of the Offer, consummate the Offer and accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly (within the meaning of Rule 14d-1114e-1(c) promulgated under the Exchange Act) after expiration of the Offer (subject to the provisions of Rule 14d-11 under the Exchange Act, and to the extent applicable). The Offer Price shall be net to the seller in cash, without interest, upon the terms and subject to the conditions of the Offer. Acceptance for payment of the shares of Company Common Stock pursuant to and subject to the conditions of the Offer after the expiration of the Offer is referred to in this Agreement as the “Offer Closing”, Merger Subsidiary and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. If the payment of the Offer Price is to be made to a Person other than the Person in whose name the tendered Certificate is registered, it shall be a condition of payment that (x) the Certificate so tendered be properly endorsed or shall be otherwise in proper form for transfer, and (y) the Person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of the Offer Price to a Person other than the registered holder of the Certificate tendered, or required for any other reason relating to such holder or requesting Person, or shall have established to the satisfaction of Parent and MergerSub that such Tax either has been paid or is not required to be paid.
(b) MergerSub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, MergerSub shall, and Parent shall cause it MergerSub to, accept for payment promptly (and pay forin any event within twenty-four (24) hours of such termination), as promptly as practicable after the expiration of irrevocably and unconditionally terminate the Offer, all Shares (1) validly tendered and MergerSub shall not withdrawn in the event of any such termination pursuant to Article VIII acquire any shares of Company Common Stock pursuant to the Offer. If the Offer is terminated by MergerSub, or this Agreement is terminated prior to the acquisition of shares of Company Common Stock in the Offer, MergerSub shall promptly (within the meaning of Rule 14e-1(c) promulgated under the Exchange Act) return, and (2) validly shall cause any depositary acting on behalf of MergerSub to return, in accordance with applicable Law, all shares of Company Common Stock that have been tendered in the Subsequent Offering Period (Offer to the date on which Shares are first accepted for payment, the “Acceptance Date”)registered holders thereof.
(c) As promptly soon as practicable after on the date hereofthe Offer is commenced, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, Parent and MergerSub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which shall include a revised the offer to purchase and form forms of the related letter of transmittal reflecting the terms and conditions set forth in this Agreement notice of guaranteed delivery and all other required or appropriate ancillary Offer documents (collectively, together with any amendments or and supplements thereto, the “Offer Documents”), and (ii) . Subject to the extent required by applicable U.S. federal securities lawsCompany’s compliance with Section 1.02(c), Parent and MergerSub shall cause the Offer Documents to be disseminated to holders of Sharesshares of Company Common Stock as required by applicable U.S. federal securities Laws. Each of ParentParent and MergerSub, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, shall not contain any untrue statement of a material fact or omit on the other hand, agree 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts MergerSub further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case shares of Company Common Stock as and to the extent required by applicable U.S. federal securities lawsLaws. The Company shall promptly furnish to Parent and MergerSub all information concerning the Company that is required or reasonably requested by Parent or MergerSub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(c). The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. In addition, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall MergerSub agree to: (i) provide the Company and its counsel with any written comments or oral comments communications that Parent, Merger Subsidiary MergerSub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptlypromptly after Parent’s or MergerSub’s, but in no event later than twenty-four hoursas the case may be, after the receipt of such commentscomments or communications, and(ii) cooperate with the Company and its counsel in responding to such comments or communications, subject and (iii) use their respective reasonable best efforts to the provisions hereof, respond promptly respond to such comments.
(d) Parent shall provide or cause to be provided to MergerSub on a timely basis the consideration necessary to pay for any shares of Company Common Stock that MergerSub becomes obligated to accept for payment and pay for pursuant to the Offer, and shall cause MergerSub to fulfill all of MergerSub’s obligations under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
The Offer. (a) Provided that nothing none of the events set forth in Exhibit A hereto shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iand be continuing, as promptly as practicable after the date hereof, (but in no any event not later than three Business Days following five business days after the public announcement of the execution and delivery of this Agreement), Merger Subsidiary Sub shall amend commence (within the Offer to (i) increase meaning of Rule 14d-2 under the purchase price to $6.50 per Share Securities Exchange Act of 1934, as amended (the “Offer Price”"Exchange Act")), an offer to purchase (the "Offer") all outstanding shares of the Company Common Stock at a price of $11.25 per share, net to the seller in cashcash (the "Offer Consideration"). The obligation of Parent and Sub to commence the Offer, consummate the Offer, accept for payment and to pay for shares of Company Common Stock validly tendered in the Offer and not withdrawn shall be subject only to those conditions set forth in Exhibit A hereto.
(b) Parent and Sub expressly reserve the right to amend or modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (and Parent shall not cause Sub to): (i) decrease the Offer Consideration, change the form of the Offer Consideration or decrease the number of Shares sought pursuant to the Offer, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary amend or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to waive the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of time the Offer and not withdrawn, expires a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents shares of Company Common Stock which constitutes a majority of the total number of Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" having the following meaning, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or date: the number of shares of Company Common Stock outstanding, together with Shares sought which the Company may be required, now or in the Offerfuture, amends to issue pursuant to options, warrants or adds to the Offer Conditions other rights or amends any other term of the Offer in any manner adverse to the stockholders of the Companyobligations outstanding at that date), (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary toiii) extend the Offer if at the scheduled or extended expiration date of the Offer any (except that Sub may extend the expiration date of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Datea) or waived; and (y) Merger Subsidiary shall extend the Offer for any period as required by any rule, regulation, regulation or interpretation or position of the U.S. United States Securities and Exchange Commission (the “"SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i"), in which case Merger Subsidiary shall be required (b) for such periods as Sub may reasonably deem necessary (but not to extend a date later than the Offer beyond 60th calendar day after the End Date. Following expiration date of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”commencement) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant event that any condition to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentis not satisfied, the “Acceptance Date”).
or (c) As promptly as practicable after for one or more times for an aggregate period of up to 15 days (not to exceed 60 calendar days from the date hereof, but in no event later of commencement) for any reason other than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information those specified in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.immediately preceding
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hc Acquisition Corp), Merger Agreement (Ero Marketing Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer been terminated pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementArticle IX, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer within a reasonable period of time following the date of this Agreement, and in any event within ten (10) Business Days following the execution of this Agreement by the parties (or such other date as the parties may agree in writing).
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not validly withdrawn prior to any then scheduled Expiration Time that number of shares of Company Common Stock which, together with the shares of Company Common Stock beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the shares of Company Common Stock outstanding as of immediately prior to the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 2.1) (the “Minimum Condition”); (ii) the Company Board having granted each of Parent and Merger Sub an effective exemption from the restrictions on transfer and ownership of the Company’s stock contained in Article VII of the Company Charter (the “Ownership Limit Waivers”); and (iii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A, as such conditions may be modified in accordance with this Agreement (together with the Minimum Condition and the Ownership Limit Waivers, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, any shares tendered in the Offer pursuant to guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures. Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer and as promptly following as practicable after the acceptance of Shares for payment pursuant to the Offer pay the Expiration Time. The Offer Price (without interest) for payable in respect of each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid to the satisfactionseller in cash, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
without interest (b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior subject to any scheduled expiration date except in the event that this Agreement is terminated withholding of Tax pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i4.3), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon on the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsAgreement.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article VIII and none of the events or conditions set forth in Annex IA shall have occurred and be existing, Cardinal shall cause Subcorp to commence, and Subcorp shall, within 12 business days, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to amended (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent rules and its Affiliatesregulations thereunder, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer ConditionsExchange Act”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to Cardinal shall cause Merger Subsidiary) Subcorp to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer Subcorp shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay forpayment, as promptly as practicable after the expiration shares of the Offer, all Shares (1) BLP Common Stock that have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the initial Expiration Date (as defined in Section 1.1(c)) at which time all conditions of the Offer shall have been satisfied or waived by Subcorp, and, thereafter, Subcorp shall accept for payment additional shares of BLP Common Stock validly tendered during any subsequent offering period to the extent Cardinal and Subcorp determine to provide a subsequent offering period in connection with the Offer. Subcorp shall not accept for payment any shares of BLP Common Stock tendered pursuant to the Offer unless there shall have been validly tendered and not withdrawn prior to the Expiration Date such number of shares of BLP Common Stock that satisfy the Minimum Condition (2) validly as defined in Annex A). Subcorp expressly reserves the right to increase the Per Share Amount and to waive any condition of the Offer, except the Minimum Condition. Without the prior written consent of BLP, Subcorp shall not decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of shares of BLP Common Stock sought to be purchased in the Offer or waive the Minimum Condition. The Per Share Amount shall be paid less any required withholding of Taxes (as defined in Section 5.12(f)), upon the terms and subject to satisfaction or waiver of the conditions of the Offer set forth in Annex A. BLP agrees that no shares of BLP Common Stock held by BLP or any of its subsidiaries will be tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(cb) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and Subcorp shall cause its Affiliates to, (i) file with the SEC an amendment Securities and Exchange Commission (the “Commission”) a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which shall include a revised an offer to purchase purchase, form of transmittal letter and form of letter notice of transmittal reflecting the terms and conditions set forth in this Agreement guaranteed delivery (collectively, together with any supplements or amendments or supplements thereto, collectively, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act provisions of applicable United States federal securities laws. The information provided and the rules to be provided by BLP, Cardinal and regulations thereunder and other applicable Law and that Subcorp for use in the Offer DocumentsDocuments shall not, when on the date filed with the SEC Commission and on the date first published, published or sent or given to holders of shares of BLP Common Stock (the stockholders of “BLP Stockholders”), as the Companycase may be, 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 Parent misleading. BLP, Cardinal and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees Subcorp each agree promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Cardinal further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC Commission and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and the BLP Stockholders to the extent required by applicable U.S. United States federal securities laws. The Company .
(c) Subject to the terms and its counsel conditions thereof, the Offer shall be given a reasonable opportunity to review and comment (A) remain open until at least midnight, New York City time, on the Schedule TO and the Offer Documents each time before any such document date that is filed with the SEC 20 business days after the date hereof the Offer is commenced (the initial “Expiration Date,” and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an “Expiration Date”); provided, however, that, without the consent of BLP, Subcorp may (Bi) on from time to time extend the Offer if, at the scheduled Expiration Date, any correspondence of the conditions of the Offer shall not have been satisfied or waived until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Commission or the staff of the Commission (the “SEC Staff”) thereof applicable to the Offer; or (iii) extend the Offer for a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three to 20 business days in order to acquire at least 90% of the outstanding shares of BLP Common Stock. Cardinal and Subcorp shall comply with the SEC (including comment response letters) concerning obligations respecting prompt payment and announcement under the Offer or Exchange Act, and, without limiting the Offer Documentsgenerality of the foregoing, Subcorp shall, and Merger Subsidiary Cardinal shall give reasonable cause Subcorp to, accept for payment, and good faith consideration to any comments made by the Company pay for, all shares of BLP Common Stock validly tendered and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect not withdrawn pursuant to the Offer Documents promptly, but in no event later than twenty-four hours, after promptly following the receipt acceptance of such comments, and, subject the shares of BLP Common Stock for payment pursuant to the provisions hereof, promptly respond to such commentsOffer and this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Boron Lepore & Associates Inc), Merger Agreement (Cardinal Health Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise On a date to a right be agreed by Parent and the Company or, if they are unable to terminate agree, on or prior to the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable 20th Business Day after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementAgreement (the “Commencement Date”), Merger Subsidiary shall amend Sub will (and Parent will cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer.
(b) The obligation and right of Merger Sub to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer to will be solely subject to: (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be being validly tendered in accordance with the terms of the Offer (and not validly withdrawn) prior to the expiration date of the Offer and not withdrawn, a any then scheduled Expiration Time that number of Shares that, together with the Shares then owned by Parent and its Affiliates, which represents a majority of the total number of Shares then outstanding (determined on a fully-fully diluted basisbasis (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, without regard to whether any convertible the vesting schedule or exchangeable securities are then vested other terms and exercisable conditions thereof)) (the “Minimum Condition”) and (ii) the satisfaction or waiver by Parent or Merger Sub (to the extent permitted hereby) of the other conditions and requirements set forth in Annex I and to no other conditions. Subject to B (together with the terms and conditions of this AgreementMinimum Condition, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant . Subject to the Offer and (y) the earliest date as of which each prior satisfaction of the Offer Conditions has been satisfied, Minimum Condition and the satisfaction or waived waiver by Parent or Merger SubsidiarySub of the other Offer Conditions, Merger Subsidiary shall Sub will (and Parent shall will cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time. The conditions to the Offer set forth in Annex B are for the sole benefit of Parent and Merger Sub and may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.1. The Offer Price payable in respect of each Share validly tendered and not properly validly withdrawn pursuant to the Offer and promptly following will be paid net to the acceptance seller in cash, without interest, subject to any withholding of Shares for payment Taxes pursuant to Section 3.2(i).
(c) The Offer will be made by means of an offer to purchase (the “Offer to Purchase”) that includes the terms and conditions of the Offer pay as set forth in this Agreement, including the Offer Conditions. Parent and Merger Sub reserve the right to waive, in whole or in part, any Offer Condition (other than the Minimum Condition), to increase the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms and conditions of or conditions to the Offer; provided, however, that unless otherwise provided that without the prior consent of by this Agreement or as previously approved in writing by the Company (which consent may be granted or withheld by the Company in its sole discretion), Merger Sub will not (i) reduce the number of Shares subject to the Offer, (Aii) reduce the Offer Price, (iii) change, modify or waive the Minimum Condition may not be waivedCondition, (Biv) no add to the conditions set forth in Annex B or modify or change may be made that changes any Offer Condition in a manner adverse to any Stockholders, (v) except as otherwise provided in this Section 1.1, extend or otherwise change the expiration time of the Offer, (vi) change the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends or adds to (vii) otherwise amend, modify or supplement any of the Offer Conditions or amends any other term terms of the Offer in any a manner adverse to any Stockholder.
(d) The Offer will expire at midnight (New York City, New York time) on the stockholders date that is 20 Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the CompanyOffer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended as permitted or required by this Agreement, the date and time to which the Offer has been so extended or re-extended (Cthe Initial Expiration Time, as so extended, the “Expiration Time”).
(i) If on or prior to any then scheduled Expiration Time, any of the expiration date shall Offer Conditions has not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub may (and in such case Parent will cause Merger Sub to) extend the Offer for successive periods of up to ten Business Days each (or such additional or longer periods of up to twenty (20) Business Days each if Parent so desires and the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in order to permit the satisfaction of such conditions; and (ii) Merger Sub will (and Parent will cause Merger Sub to) extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Securities and Exchange Commission or its staff (the “SEC”); provided, however, that, in any case in this Section 1.1(e), Merger Sub will not be extended except as otherwise provided hereinrequired to extend the Offer beyond the Outside Date and will not be permitted to extend the Offer beyond the Outside Date without the Company’s consent in its sole discretion.
(f) On the terms and subject to the conditions of this Agreement, Merger Sub will, and Parent will cause Merger Sub to, accept and pay for (Dsubject to any withholding of tax pursuant to Section 3.2(i)) all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable and in any event within 12 hours after the Expiration Time. Acceptance for payment of Shares in accordance with this Agreement upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.”
(g) Merger Subsidiary shall Sub will not terminate the Offer prior to any scheduled expiration date Expiration Time, except after this Agreement has been terminated in accordance with Article VIII. If the Offer is terminated or withdrawn by Merger Sub prior to the acceptance for payment of Shares tendered in the event that this Agreement is terminated pursuant Offer, Merger Sub will promptly return, and will cause any depository acting on behalf of Merger Sub to Section 11.01. Notwithstanding return, in accordance with applicable Law, all tendered Shares to the foregoing, registered holders thereof.
(xh) Merger Subsidiary shall (or at As soon as practicable on the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shallSub will file with the SEC, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of 14d-3 under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentexhibits thereto, the “Acceptance DateSchedule TO”).
(c) As promptly . The Schedule TO will include, as practicable after exhibits, the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, Offer to Purchase and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement, if any (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company will promptly furnish to Parent and (ii) to Merger Sub all information concerning the extent Company required by applicable U.S. federal securities laws, the Exchange Act to be set forth in the Offer Documents. Parent and Merger Sub will take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and disseminated to the Stockholders, in each case as and to the extent required by the Exchange Act. Parent and Merger Sub, on the date first publishedone hand, sent or given to the stockholders of and the Company, shall not contain any untrue statement of a material fact or omit to state on the other hand, will correct promptly 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become becomes false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub will take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Stockholders, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub will 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 will promptly provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand. Prior to filing any Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub will provide the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, and Parent and Merger Subsidiary shall Sub will give reasonable and good faith consideration to any comments made by such comments.
(i) Parent will provide or cause to be provided to Merger Sub, within two Business Days after the Company Expiration Time, the funds necessary to pay for any Shares that Merger Sub becomes obligated to accept for payment, and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parentpay for, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect pursuant to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsand this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
The Offer. (a) Provided that nothing Merger Sub shall, and Parent shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Icause Merger Sub to, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend commence (within the Offer to (i) increase meaning of Rule 14d-2 under the purchase price to $6.50 per Share Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Offer PriceExchange Act”), net ) the Offer.
(b) The obligation of Merger Sub to the seller in cash, (ii) provide that the conditions accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, subject to: (iiii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be being validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a validly withdrawn prior to and at any then scheduled Expiration Time: (A) that number of Shares thatshares of Company Common Stock (including the shares of Company Common Stock that would result from the exercise of all validly tendered In-the-Money Warrants) which, together with the Shares then shares beneficially owned by Parent and its Affiliatesor Merger Sub (if any), represents at least a majority of the total shares of Company Common Stock then outstanding (excluding any treasury stock but including any Restricted Shares and the shares of Company Common Stock that would result from the exercise of all In-the-Money Warrants regardless of the exercise price, the vesting schedule or other terms and conditions thereof); and (B) that number of Shares shares of Company Preferred Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the shares of Company Preferred Stock then outstanding on a fully-diluted basis(excluding any treasury stock) ((A) and (B) collectively, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”); and (ii) and to the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I and to no other conditions. Subject to Exhibit A (together with the terms and conditions of this AgreementMinimum Condition, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after . The Company agrees that no shares of Company Common Stock or Company Preferred Stock held by the later Company or any of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares its Subsidiaries will be tendered pursuant to the Offer and (y) Offer. Subject to the earliest date as of which each prior satisfaction of the Offer Conditions has been satisfied, Minimum Condition and the satisfaction or waived waiver by Parent or Merger SubsidiarySub of the other Offer Conditions, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all Shares validly tendered and not properly validly withdrawn pursuant to the Offer and as promptly following as practicable after the acceptance of Shares for payment pursuant to the Offer pay the Expiration Time. The Common Offer Price (without interest) for payable in respect of each Share share of Company Common Stock, and the Preferred Offer Price payable in respect of each share of Company Preferred Stock, validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest, on the terms and subject to the conditions set forth in this Agreement and the Offer.
(c) The Offer shall be made by Parent or Merger Subsidiary, means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions.
(b) . The Offer Conditions are for the sole benefit of Parent and Merger Subsidiary Sub, and Parent and Merger Sub expressly reserves reserve the right (in their sole discretion) to waive waive, in whole or in part, any of Offer Condition, to increase the Offer Conditions and Price or to make any other changes in the terms and conditions of or conditions to the Offer; provided, however, that unless otherwise provided that without the prior consent of the Company (which consent may be granted by this Agreement or withheld as previously approved in writing by the Company in its sole discretionCompany, Merger Sub shall not, and Parent shall not permit Merger Sub to: (i) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or reduce the number of Shares sought in subject to the Offer, amends or adds (ii) subject to the Offer Conditions or amends any other term terms of this Agreement (including Section 6.20, but subject to the satisfaction of clause (c)(iii)(B)(2) in the Offer Conditions), reduce the Offer Price, (iii) change, modify or waive the Minimum Condition, (iv) add to the conditions set forth in Exhibit A or modify or change any Offer Condition in a manner adverse in any manner adverse material respect to the any stockholders of the Company, (Cv) the expiration date shall not be extended except as otherwise provided hereinin this Section 1.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer, or (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse in any material respect to any stockholders of the Company.
(d) The Offer shall expire at midnight (New York time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the contrary, and without limiting Parent’s or Merger Sub’s obligations under this Section 1.01(e): (i) if on the then-scheduled Expiration Time, any of the Offer Conditions shall not be satisfied or, in Merger Sub’s sole discretion, waived: (A) in its sole discretion, Merger Sub may extend the Offer for any additional period or periods as it so determines or (B) if requested by the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for: (I) up to two (2) additional successive periods, not to exceed ten (10) Business Days each, and (DII) a third (3rd) additional successive period not to exceed ten (10) Business Days, if all of the Offer Conditions other than the condition set out in clause (c) thereof have been satisfied (other than those conditions to be satisfied at the Offer Closing or the Expiration Time, as the case may be, but subject to the satisfaction thereof) if the Company reasonably believes that such condition in clause (c) will be satisfied prior to the end of such additional ten (10) Business Day period (or, in the case of this clause (B), for such longer period as the parties hereto reasonably agree); (ii) if the Offer is required to be extended by any rule, regulation, interpretation or position of the SEC applicable to the Offer, then Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for the minimum period required by such Law, rule, regulation, interpretation or position or (iii) in its sole discretion, following the Offer Closing, Merger Sub may extend the Offer for a “subsequent offering period” and one or more extensions thereof, not to exceed ten (10) Business Days, in each instance (or for such longer period to which the Company reasonably agrees), in accordance with Rule 14d-11 of the Exchange Act, and the Offer Documents may, in Merger Sub’s sole discretion, provide for a reservation of right to do so; provided that in no event shall Merger Sub be required to extend the Offer (A) beyond March 29, 2013 (the “Outside Date”) or (B) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article VIII.
(f) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (less any withholding of tax pursuant to Section 3.05) all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of Shares pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Nothing contained in this Section 1.01 shall affect any termination rights in Article VIII.
(g) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 11.01Article VIII. Notwithstanding If the foregoingOffer is terminated or withdrawn by Merger Sub, (x) Merger Subsidiary shall (or at this Agreement is terminated pursuant to Article VIII, prior to the request acceptance for payment of the CompanyCompany Common Stock tendered in the Offer, Parent Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Subsidiary toSub to return, all tendered Shares to the registered holders thereof.
(h) extend As soon as practicable on the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent and (ii) Merger Sub all information concerning the Company required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent or Merger Sub in connection with its obligations relating to the extent required by applicable U.S. federal securities laws, Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the 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 shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
(i) Subject in all respects to the other terms and conditions of this Agreement and the Offer, Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any Shares that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Bishop Infrastructure III Acquisition Company, Inc.), Merger Agreement (Westway Group, Inc.)
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth in Annex Ithis Merger Agreement, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following February 23, 1998, Sub shall, and Purchaser shall cause Sub to, commence the public announcement Offer. The obligation of the execution Sub to, and of this AgreementPurchaser to cause Sub to, Merger Subsidiary shall amend commence the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”)and accept for payment, net and pay for, any Company Common Shares and Company Preferred Shares tendered pursuant to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I Exhibit A (any of which, including the Minimum Condition (as defined in Exhibit A) may be waived by Sub in its sole discretion) and to no other conditions. Subject to the terms and conditions of this Merger Agreement. Sub expressly reserves the right to modify the terms of the Offer, including except that, without the prior satisfaction consent of the Company, Sub shall not (i) reduce the number of Company Common Shares and Company Preferred Shares to be purchased in the Offer; (ii) reduce the Common Share Offer Price or waiver of the Preferred Share Offer Price, except as otherwise provided in this Merger Agreement; (iii) modify or add to the conditions set forth in Annex I (Exhibit A in any manner that the “Offer Conditions”)Board of Trustees of the Company, promptly after in the later exercise of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law its fiduciary obligations, determines to accept for payment Shares tendered pursuant be adverse to the Offer and holders of Company Common Shares or Company Preferred Shares; (yiv) the earliest date except as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes provided in the terms of or conditions to next sentence, extend the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretionv) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends ; or adds to the Offer Conditions or amends (vi) amend any other term of the Offer in any a manner that the Board of Trustees of the Company, in the exercise of its fiduciary obligations, determines to be adverse to the stockholders holders of Company Common Shares and Company Preferred Shares. Notwithstanding the foregoing, Sub may, without the consent of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary toi) extend the Offer beyond the scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to exceed 20 business days, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Sub's obligation to accept for payment, and pay for, Company Common Shares and Company Preferred Shares shall not be satisfied or waived, from until such time to time until as such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and or (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “"SEC”") or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer and this Merger Agreement, Merger Subsidiary Sub shall, and Parent Purchaser shall cause it Sub to, accept for payment payment, and pay for, as promptly as practicable after the expiration of the Offer, all Company Common Shares (1) and Company Preferred Shares validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted that Sub becomes obligated to accept for payment, and pay for, pursuant to the “Acceptance Date”).
(c) As promptly Offer as soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement expiration of the execution Offer.
(b) On the date of this Agreementcommencement of the Offer, Merger Subsidiary shall, Purchaser and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule 14D-1 with respect to the Schedule TOOffer, which shall include a revised contain an offer to purchase and form of a related letter of transmittal reflecting and summary advertisement (such Schedule 14D-1 and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), . Purchaser and (ii) to the extent required by applicable U.S. federal securities laws, cause Sub agree that the Offer Documents shall comply as to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply form in all material respects with the 1934 Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the "Exchange Act"), and other applicable Law and that the Offer Documents, when filed with the SEC and Documents on the date first published, sent or given to the stockholders of the Company's shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (misleading, except that Parent and Merger subsidiary shall have no obligation representation is made by Purchaser or Sub with respect to any information in the Offer Documents supplied by the Company or its Representatives specifically for inclusion in writing)the Offer Documents. Each of ParentPurchaser, Merger Subsidiary Sub and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts each of Purchaser and Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's shareholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and upon the Offer Documents each time before any such document is filed and all amendments and supplements thereto prior to their filing with the SEC after or dissemination to shareholders of the date hereof Company. Purchaser and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration Sub agree to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments ParentPurchaser, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject .
(c) Subject to the provisions hereofterms and conditions of the Offer, promptly respond Purchaser shall provide or cause to such commentsbe provided to Sub on a timely basis the funds necessary to accept for payment, and pay for, any Company Common Shares and Company Preferred Shares that Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 2 contracts
Sources: Merger Agreement (Eastgroup Properties Inc), Merger Agreement (Eastgroup Properties Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated been terminated in accordance with Section 9.1, Merger Sub shall, and Parent shall cause Merger Sub to, on or before December 3, 2013, commence (within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act), the Offer.
(b) following the filing The obligations of such amendmentMerger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for (ivby means of funds provided to Merger Sub by Intermediary) make such other amendments as are necessary or appropriate to conform any shares of Company Common Stock pursuant to the requirements of this Agreement. The Offer shall be is subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver (as provided in Section 2.1(c) below) of the conditions set forth in Annex I (the “Offer Conditions”), promptly after . On the later terms and subject to the conditions of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiarythis Agreement, Merger Subsidiary shall (Sub shall, and Parent shall cause Merger Subsidiary Sub to, accept and pay for (by means of funds provided to Merger Sub by Intermediary) consummate the Offer in accordance with its terms and accept for payment each Share all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer (the “Tendered Shares”) as soon as practicable after the expiration date of the Offer and promptly following the in compliance with applicable Law. The acceptance of Shares for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer pay is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Price Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub (without interestby means of funds provided to Merger Sub by Intermediary) on a timely basis funds necessary to purchase and pay for each Share validly tendered any and not properly withdrawn all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(bc) Parent and Merger Subsidiary Sub expressly reserves reserve the right to waive any of the Offer Conditions and Conditions, to increase the Offer Price or to make any other changes in the terms and conditions of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted that, unless otherwise provided in this Agreement or withheld previously approved by the Company in its sole discretionwriting, Parent and Merger Sub shall not: (i) (A) decrease the Minimum Condition may not be waived, (B) no Offer Price or change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (ii) decrease the number of shares of Company Common Stock subject to or adds sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions or amends amend any Offer Condition, (iv) waive or amend the Minimum Condition, (v) amend any other term of the Offer in any a manner that is materially adverse to the stockholders holders of shares of Company Common Stock or (vi) extend or otherwise change the Expiration Date except as required or permitted by Section 2.1(e).
(d) On the date the Offer is commenced, Merger Sub shall, and Parent shall cause Merger Sub to, file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer, which Tender Offer Statement shall include an offer to purchase, letter of transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the documents included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the “Offer Documents”) and cause the Offer Documents to be disseminated to the Stockholders as and to the extent required by applicable Law. The Company hereby consents to the inclusion of the Company Board Recommendation in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Offer Documents to comply as to form in all material respects with the requirements of applicable Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company, (C) the expiration date Company Subsidiary and the Stockholders that may be required to be set forth in the Offer Documents or reasonably requested in connection with any action contemplated by this Section 2.1(d), including communication of the Offer to the record and beneficial holders of shares of Company Common Stock. Each of the parties agrees to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall not be extended except as otherwise provided hereinhave become false or misleading in any material respect, and (D) Parent and Merger Subsidiary shall not terminate Sub further agree to take all steps necessary to cause the Offer prior Documents as so corrected to be filed with the SEC and disseminated to the Stockholders, in each case as and to the extent required by applicable Law. Parent and Merger Sub shall provide the Company and its counsel in writing with any comments (whether written or oral) that 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 receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any scheduled expiration date except comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable efforts to respond promptly to any such SEC comments.
(e) Subject to the terms and conditions set forth in the event Offer Documents, the Offer shall remain open until midnight, New York City time, at the end of the 20th business day (for purposes of this Section 2.1(e) calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date that the Offer is commenced (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Agreement is terminated pursuant Section 2.1(e) or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Section 11.012.1(e), the “Expiration Date”). Notwithstanding the foregoing, (xi) Merger Subsidiary shall (or at if, on the request then-effective Expiration Date, any of the CompanyOffer Conditions have not been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Subsidiary Sub to, extend the Offer for successive periods of not more than 10 Business Days (the length of such period to be determined by Merger Sub), or for such longer period as the parties may agree in order to permit the satisfaction of the Offer Conditions; provided that if the sole then-unsatisfied Offer Condition is the Minimum Condition, the maximum aggregate number of days that Merger Sub shall extend the Offer pursuant to this clause (i) is 40 Business Days; provided further that Merger Sub shall not, without the Company’s prior written consent, extend the Offer if at the scheduled or extended expiration date of the all Offer any of the conditions to the Offer shall not be Conditions have been satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (yii) Merger Subsidiary Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market its staff applicable to the OfferOffer or necessary to resolve any comments of the SEC or its staff applicable to the Offer or the Offer Documents; provided that that, in no each case, Merger Sub shall not in any event shall Merger Subsidiary be required to to, and without the Company’s prior written consent shall not, extend the Offer beyond the End Outside Date, and (iii) Merger Sub shall have the right successively to extend the Offer from time to time if, on the on the then-effective Expiration Date the Marketing Period shall not have been completed, and in each instance Merger Sub may extend the Offer for an extension period of not more than 10 Business Days (the length of such period to be determined by Merger Sub); provided that, unless the parties agree otherwise, the maximum aggregate number of days that Merger Sub shall extend the Offer pursuant to this clause (iii) is 20 Business Days. Nothing in this Section 2.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of the Company, Parent or Merger Subsidiary is not then permitted Sub to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required 9.1. In the event that this Agreement is terminated pursuant to extend the Offer beyond the End Date. Following expiration of the Offerterms hereof, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept promptly (and in any event within one Business Day of such termination) irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated in accordance with Section 9.1, prior to the acceptance for payment and pay for, as promptly as practicable after the expiration of shares of Company Common Stock tendered in the Offer, all Shares (1) validly tendered Merger Sub shall, and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentParent shall cause Merger Sub to, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shallreturn, and shall cause its Affiliates toany depository acting on behalf of Merger Sub to return, (i) file with the SEC an amendment all tendered Company Common Stock to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to registered holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsthereof.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Salix Pharmaceuticals LTD)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth previously been validly terminated in Annex Iaccordance with Section 7, as promptly as practicable after the date hereof, but in no any event later than three Business Days following within ten business days after the public announcement of the execution date of this Agreement, Merger Subsidiary Purchaser shall amend commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing Offer for all of such amendment, and the outstanding Company Shares (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be including any Company Shares subject to repurchase rights in favor of the condition that there shall be validly tendered in accordance with the terms Company) for consideration per Company Share consisting of the Offer prior Price. (The date on which Purchaser commences the Offer, within the meaning of Rule 14d-2 under the Exchange Act, is referred to in this Agreement as the “Offer Commencement Date”).
(b) As promptly as practicable on the later of: (i) the earliest date as of which Purchaser is permitted under applicable Legal Requirements to accept for payment Company Shares tendered pursuant to the expiration Offer; and (ii) the earliest date as of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver which each of the conditions set forth in Annex I (the “Offer Conditions”)) shall have been satisfied or waived, promptly after the later of Purchaser shall (xand Parent shall cause Purchaser to) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment all Company Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share not validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offerwithdrawn). The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Purchaser to accept for payment, and pay the Offer Price (without interest) for, each Share validly payment Company Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver by Parent or Merger Subsidiary, of each of the Offer ConditionsConditions (and shall not be subject to any other conditions). As promptly as practicable after the acceptance for payment of any Company Shares tendered pursuant to the Offer, Purchaser shall pay for such Company Shares.
(bc) Merger Subsidiary expressly reserves Notwithstanding anything to the right contrary contained in this Agreement, neither Parent nor Purchaser shall (without the prior written consent of the Company):
(i) change or waive the Minimum Condition (as defined in Annex I);
(ii) decrease the number of Company Shares sought to waive be purchased by Purchaser in the Offer;
(iii) reduce the Offer Price;
(iv) extend or otherwise change the expiration date of the Offer (except to the extent required pursuant to Section 1.1(d));
(v) change the form of consideration payable in the Offer; or
(vi) amend, modify or supplement any of the Offer Conditions and to make any other changes in the or terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any a manner adverse that adversely affects, or would reasonably be expected to adversely affect, the stockholders holders of the CompanyCompany Shares.
(d) Unless extended as provided in this Agreement, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration shall expire on the date except (the “Initial Expiration Date”) that is 20 business days (calculated as set forth in Rule 14d-1(g)(3) under the event that this Agreement is terminated pursuant to Section 11.01Exchange Act) after the Offer Commencement Date. Notwithstanding the foregoing, (x) Merger Subsidiary shall (if, on the Initial Expiration Date or at any subsequent date as of which the request Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Purchaser, without the consent of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions may (and, to the Offer shall not be satisfied or waived, extent requested by the Company from time to time until time, shall) extend (and re-extend) the Offer and its expiration date for one or more periods ending no later than the Outside Date, to permit such conditions are satisfied (other than conditions which by their nature are Offer Condition to be satisfied on satisfied; provided, however, that no individual extension shall be for a period of more than 10 business days without the prior written consent of the Company. The Offer may be terminated prior to its expiration date (as such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 7.
(e) Purchaser may, in its discretion, elect to provide for a subsequent offering period (and one or more extensions thereof) (and, if immediately following the Acceptance Date) or waived; Time (as defined in Section 1.4(a)), Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% of the Company Shares outstanding at that time (y) Merger Subsidiary which shares beneficially owned shall extend include shares tendered in the Offer for any period required by any ruleand not withdrawn), regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if extent requested by the Company, or may, in its sole discretion, Purchaser shall provide for a subsequent offering period (“Subsequent Offering Period”of at least 10 business days) in accordance with Rule 14d-11 of under the 1934 Act. Subject to Exchange Act following the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Time.
(cf) As promptly as practicable The Offer Price shall be adjusted to the extent appropriate to reflect the effect of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Company Shares occurring or having a record date on or after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, Agreement and shall cause its Affiliates to, (i) file with the SEC an amendment prior to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required payment by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and Purchaser for the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 2 contracts
Sources: Merger Agreement (Beckman Coulter Inc), Merger Agreement (Biosite Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementAgreement (and in any event within ten (10) Business Days), Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer.
(b) The obligation and right of Merger Sub to accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer (and not validly withdrawn) prior to any then scheduled Expiration Time that number of shares of Company Common Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Company Common Stock then outstanding (determined on a partially diluted basis assuming conversion or exercise of all deferred stock units but not any other derivative securities including stock options) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A (together with the Minimum Condition, the “Offer Conditions”). Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer and as promptly following as practicable after the acceptance of Shares for payment pursuant Expiration Time. The conditions to the Offer pay set forth in Exhibit A are for the sole benefit of Parent and Merger Sub and may be asserted by Parent or Merger Sub regardless of the circumstances (including any action or inaction by Parent or Merger Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under this Agreement) giving rise to such condition or may be waived by Parent or Merger Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to this Section 1.01. The Offer Price (without interest) for payable in respect of each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest, subject to any withholding of Taxes required by Parent or Merger Subsidiary, applicable Law.
(c) The Offer shall be made by means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions.
(b) . Parent and Merger Subsidiary expressly reserves Sub reserve the right to waive waive, in whole or in part, any of Offer Condition, to increase the Offer Conditions and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement or conditions as previously approved in writing by the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer; provided that without , (ii) reduce the prior consent of the Company Offer Price, (which consent may be granted iii) change, modify or withheld by the Company in its sole discretion) (A) waive the Minimum Condition may not be waivedCondition, (Biv) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds add to the conditions set forth in Exhibit A or modify or change any Offer Conditions or amends any other term of the Offer Condition in a manner adverse in any manner adverse material respect to the stockholders any shareholders of the Company, (Cv) the expiration date shall not be extended except as otherwise provided hereinin this Section 1.01, extend or otherwise change the expiration date of the Offer, (vi) change the form of consideration payable in the Offer or (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse in any material respect to any shareholders of the Company.
(d) The Offer shall expire at midnight (Philadelphia, Pennsylvania time) on the date that is twenty (20) Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) If on or prior to any then scheduled Expiration Time, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Exhibit A) have not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub (i) may (and Parent shall cause Merger Sub to) extend the Offer for successive periods of up to ten (10) Business Days each (or such longer period of up to twenty (20) Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; and (ii) shall (and Parent shall cause Merger Sub to) extend the Offer on one occasion for a period of up to seven (7) Business Days if requested by the Company; provided, however, that, in either case, Merger Sub shall not be required to extend the Offer beyond June 23, 2011 (the “Outside Date”) and shall not extend the Offer beyond the Outside Date without the Company’s consent. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the Securities and Exchange Commission or its staff (the “SEC”).
(f) On the terms and subject to the conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (Dsubject to any withholding of tax pursuant to Section 3.05) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right to, in its sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” not to exceed ten (10) Business Days after the Offer Closing in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.01 shall affect any termination rights in Article VIII.
(g) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 11.01Article VIII. Notwithstanding If the foregoingOffer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, (x) Merger Subsidiary shall (or at this Agreement is terminated pursuant to Article VIII, prior to the request acceptance for payment of the CompanyCompany Common Stock tendered in the Offer, Parent Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Subsidiary toSub to return, in accordance with applicable Law, all tendered Company Common Stock to the registered holders thereof.
(h) extend As soon as practicable on the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement, if any (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent and (ii) to Merger Sub all information concerning the extent Company required by applicable U.S. federal securities laws, the Exchange Act to be set forth in the Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders shareholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to promptly to correct any material information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
(i) Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Tasty Baking Co)
The Offer. (a) Provided that nothing Purchaser, Parent and ▇▇▇▇▇▇▇▇ shall have occurred that would give rise to a right to terminate 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 pursuant to any of the conditions set forth in Annex I, as promptly as reasonably practicable after the date hereofEffective Date, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to five (i5) increase the purchase price to $6.50 per Share business days (the “Offer Price”), net to the seller as defined in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under of the Exchange Act) following from the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements date of this Agreement. The Agreement and the Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms remain open at least twenty (20) business days from commencement of the Offer (the “Initial Expiration Date”). The obligation of Purchaser, and the obligation of Parent and ▇▇▇▇▇▇▇▇ to cause Purchaser, to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver by Parent or Merger Subsidiary, Purchaser of each the following conditions: (i) there being validly tendered and not withdrawn prior to the expiration of the Offer Conditions.
that number of shares of Common Stock which, together with any shares of Common Stock then owned by Holdco, Purchaser, and/or Parent and ▇▇▇▇▇▇▇▇ and their respective affiliates, represents at least a majority of the aggregate voting power of the Shares and the shares of Class B Common Stock, par value $1.00 per share, of the Company (b“Class B Shares”), voting together as a single class, outstanding on the date such Shares are purchased (the “Minimum Condition”); and (ii) Merger Subsidiary the other conditions set forth in Annex A hereto. Purchaser shall, on the terms and subject to the prior satisfaction or waiver by Parent or Purchaser of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, accept for payment and pay for all Shares tendered and not withdrawn as soon as it is legally permitted to do so under applicable Law. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions, to increase the Offer Conditions Price and to make any other changes in the terms of or conditions to the Offer; provided provided, however, that without Purchaser shall not, and Parent and ▇▇▇▇▇▇▇▇ shall cause Purchaser not to, decrease the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waivedOffer Price, (B) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or decrease the number of Shares sought in the offer, impose additional conditions to the Offer, amends or adds to extend the Offer Conditions beyond the Initial Expiration Date, waive the Minimum Condition or amends amend any other term or condition of the Offer in any manner adverse to the stockholders holders of the CompanyShares, in each case without the prior written consent of the Company (C) such consent to be authorized by the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01Board or a duly authorized committee thereof). Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at Purchaser may, without the request consent of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions prior to the Offer shall not be satisfied or waivedtermination of this Agreement, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the U.S. United States Securities and Exchange Commission (the “SEC”) ), or the Nasdaq Global Market staff thereof, applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i). If, in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following at any scheduled expiration of the Offer, Merger Subsidiary shallany condition to the Offer is not satisfied, if requested by including, without limitation, the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 satisfaction of the 1934 Act. Subject to the foregoingMinimum Condition, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary Holdco shall, and Parent shall cause it Holdco to, accept extend the Offer for payment and pay forone or more periods of not more than five (5) business days each. Purchaser may also, as promptly as practicable after without the expiration consent of the OfferCompany, all or if requested by the Company shall, extend the Offer in accordance with Rule 14d-11 under the Exchange Act; provided, however, Parent shall not extend the Offer in accordance with Rule 14d-11 if the Shares (1) validly tendered and not withdrawn prior to the scheduled expiration of the Offer (taken together with Shares and Class B Shares then owned by Parent, ▇▇▇▇▇▇▇▇, Holdco, Purchaser and any of their subsidiaries and affiliates) constitute in the aggregate 90% or greater of the aggregate voting power of the Shares and the Class B Shares. Parent and ▇▇▇▇▇▇▇▇ shall provide or cause to be provided to the Purchaser on a timely basis the funds necessary to purchase any shares of Common Stock that the Purchaser becomes obligated to purchase pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(cb) As promptly as practicable after the date hereof, (but in no event later than three Business Days following five (5) business days after the public announcement of the execution of this Agreementdate hereof), Merger Subsidiary shallParent, ▇▇▇▇▇▇▇▇ and Purchaser shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO, which TO shall include a revised contain or incorporate by reference an offer to purchase and form forms of the related letter of transmittal reflecting the terms and conditions set forth in this Agreement all other ancillary Offer documents (collectively, together with any all amendments or and supplements thereto, the “Offer Documents”). The Schedule TO shall reflect the existence of this Agreement. Parent, ▇▇▇▇▇▇▇▇ and (ii) Purchaser shall take all steps necessary to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to the holders of Sharesthe Shares as and to the extent required by applicable federal securities laws. Each of Parent, Merger Subsidiary ▇▇▇▇▇▇▇▇ and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer DocumentsPurchaser, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, 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 on the statements thereinother hand, in light of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees will promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates toeach of Parent, use their respective reasonable best efforts ▇▇▇▇▇▇▇▇ and Purchaser will take all necessary steps to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC after the date hereof SEC. In addition, Parent, ▇▇▇▇▇▇▇▇ and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration Purchaser agree to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with in writing any comments or other communications, whether written or oral comments oral, that Parent, Merger Subsidiary ▇▇▇▇▇▇▇▇ or Purchaser or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject comments or other communications and to notify the provisions hereof, promptly respond Company and its counsel a reasonable time prior to responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Article VIII and that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex ICompany has complied with its obligations under Section 1.2, as promptly as practicable after the date hereof, of this Agreement but in no event more than ten (10) business days after the date of this Agreement (or such later than three Business Days following date as the public announcement parties may agree), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer.
(b) Subject to the terms and conditions of this Agreement and to the satisfaction, or waiver (to the extent permitted under this Agreement) by Purchaser, of the execution conditions set forth in Annex I (collectively, the “Offer Conditions”) as of the Expiration Date in accordance with Section 1.1(d), Purchaser shall promptly on or after the Expiration Date accept for payment (such time of acceptance for payment, the “Offer Acceptance Time”) and pay (by delivery of funds to the Depository Agent) for all Shares validly tendered and not properly withdrawn pursuant to the Offer that Purchaser becomes obligated to purchase pursuant to the Offer. Parent shall on or prior to the Expiration Date provide or cause to be provided to Purchaser, on a timely basis, the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer. The Company shall register (and shall instruct its transfer agent to register) the transfer of the Shares accepted for payment by Purchaser effective as promptly as practicable after the Offer Acceptance Time.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, Merger Subsidiary shall amend and with consummation thereof subject to the Minimum Condition and the other Offer Conditions. Purchaser expressly reserves the right to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide waive any Offer Condition other than the Minimum Condition and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that unless otherwise provided by this Agreement, without the prior written consent of the Company (which consent may be withheld in the sole discretion of the Company), Purchaser shall not (A) decrease the Offer Price other than in accordance with Section 1.1(f), (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) impose conditions to the Offer shall be as set forth in Annex I and that no other conditions shall applyaddition to the Offer Conditions, (iiiE) provide that amend, modify or supplement any of the expiration date terms of the Offer or the Offer Conditions in a manner that adversely affects holders of Shares, (F) amend, modify or waive the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be terminated prior to the Expiration Date, unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall be midnight expire at one minute after 11:59 p.m. (New York City Boston time) on the date that is ten Business Days twenty (for this purpose 20) business days (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such amendmentlater 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) Notwithstanding any provision to the contrary contained in this Agreement but subject to the parties’ respective rights to terminate the Agreement pursuant to Article VIII, (i) if, as of the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, Purchaser may, in its discretion (and without the consent of the Company or any other Person), extend the Offer on one or more occasions, for an additional period of up to 10 business days per extension, to permit such Offer Condition to be satisfied, (ii) Purchaser shall extend the Offer from time to time for: (A) any period required by any Law, any interpretation or position of the SEC or the staff thereof or any rules and regulations of the NASDAQ Stock Market (“NASDAQ”) applicable to the Offer, and (B) periods of up to 10 business days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act or any applicable foreign Antitrust Law shall have expired or been terminated, (iii) if, as of the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, at the request of the Company, Purchaser shall extend the Offer on one or more occasions for an additional period of up to 10 business days per extension, to permit such Offer Condition to be satisfied, and (iv) make such other amendments as are necessary if the Company has delivered a Change of Status Notice to Parent, and the Company so requests, Purchaser shall extend the Offer on one or appropriate to conform to more occasions so that the requirements of this Agreement. The Offer shall be subject to Expiration Date does not occur earlier than two (2) business days immediately after the condition that there shall be validly tendered in accordance with the terms expiration of the Offer prior Notice Period or Intervening Event Notice Period, as applicable; provided, however, that in no event shall Purchaser: (1) be required to the expiration date of extend the Offer and not withdrawn, a number of Shares that, together with beyond the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard earlier to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later occur of (x) the earliest date as valid termination of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer this Agreement in compliance with Section 8.1 and (y) the earliest date as of which each of End Date (such earlier date, the “Extension Deadline”), (2) be permitted to extend the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate beyond the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that Extension Deadline without the prior written consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, or (C3) be permitted, without the expiration date prior written consent of the Company, which shall not be extended except as otherwise provided hereinunreasonably withheld, or required by the Company, to extend the Offer by periods exceeding an aggregate of 20 business days in the event that (x) the Company has not delivered to Parent a Change of Status Notice and (Dy) Merger Subsidiary each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived as of any then scheduled Expiration Date and the Minimum Condition shall not have been satisfied as of such scheduled Expiration Date. Purchaser shall not terminate the Offer prior to any scheduled expiration date Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding 8.1.
(f) The Offer Price shall be adjusted appropriately and proportionately to reflect the foregoingeffect of any stock split, reverse stock split, stock dividend (xincluding 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 on or after the date hereof and at or prior to the Offer Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided that nothing in this Section 1.1(f) Merger Subsidiary shall be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.
(g) Nothing in this Section 1.1 shall be deemed to impair, limit or at otherwise restrict the request right of the Company, Purchaser or Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend 8.1. In the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject event that this Agreement is terminated pursuant to the foregoingterms hereof, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, Purchaser shall (and Parent shall cause it Purchaser to, accept for payment and pay for, ) as promptly as practicable after the expiration of irrevocably and unconditionally terminate the Offer, all shall not acquire any Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered in Shares to the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)registered holders thereof.
(ch) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution Offer (within the meaning of this AgreementRule 14d-2 under the Exchange Act), Merger Subsidiary shall, Parent and Purchaser shall cause its Affiliates to, (i) file with the SEC an amendment a tender offer statement on Schedule TO with respect to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Offer (collectively, together with any all amendments or and supplements thereto and including exhibits thereto, the “Schedule TO”) that will contain or incorporate by reference the Offer Documents”), to Purchase and form of the related letter of transmittal and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to Purchase and related documents to be disseminated to holders of Shares, in each case as and to the extent required by applicable Law. Each of Parent, Merger Subsidiary Parent and the Company agrees Purchaser agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the other “Offer Documents Documents”) filed by any of them either Parent or Purchaser with the SEC to comply in all material respects with the 1934 Exchange Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)Laws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, Parent further agrees to use their respective all reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to promptly be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.Company
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer been terminated pursuant to any of Article VIII, and subject to the terms and conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary Sub shall amend (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer no later than ten (10) Business Days) from the date of this Agreement.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) increase there being validly tendered in the purchase price Offer and not validly withdrawn prior to $6.50 per Share any then scheduled Expiration Time that number of shares of Company Common Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Fully Diluted Shares as of immediately prior to the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.01) (the “Offer PriceMinimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex A, as such conditions may be modified in accordance with this Agreement (together with the Minimum Condition, the “Offer Conditions”). Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in accordance with its terms and (i) promptly after the Expiration Time, accept for payment (the first date of acceptance of shares of Company Common Stock for payment, the “Acceptance Date”) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer, which acceptance shall be by written notice to the Exchange Agent (as hereinafter defined); (ii) on the Acceptance Date, deposit or cause to be deposited with the Exchange Agent, cash in U.S. dollars sufficient to pay the aggregate Offer Price for such accepted shares of Company Common Stock, and (iii) as promptly as practicable following such deposit, cause the Exchange Agent to pay for all shares of Company Common Stock so accepted for payment. Also on the Acceptance Date, Parent and Merger Sub shall execute and deliver and enter into the CPR Agreement with the Company and the CPR Rights Agent and deposit with the CPR Rights Agent pursuant to such agreement, the amount of the Contingent Cash Payment determined in accordance with Section 6.16 hereof (or if the amount of the Contingent Cash Payment shall not have been determined on the Acceptance Date in accordance with Section 6.16, the amount otherwise established for such deposit pursuant to Section 6.16), per share for each share validly tendered and not validly withdrawn pursuant to the Offer. Such amount shall thereafter be disbursed in accordance with the provisions of the CPR Agreement. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest (ii) provide subject to any withholding of tax pursuant to Section 3.05), on the terms and subject to the conditions set forth in this Agreement. In the event that the conditions Acceptance Date occurs, but the number of shares of Company Common Stock that have been validly tendered and not properly withdrawn in the Offer, together with any shares of Company Common Stock then owned by Parent and Merger Sub, assuming exercise of the Top-Up Option in full, is less than ninety percent (90%) of the outstanding shares of Company Common Stock on a fully diluted basis, Merger Sub may, in its sole discretion, commence a “subsequent offering period” (in accordance with Rule 14d-11 promulgated under the Exchange Act) for a number of days to be determined by Parent, but not less than three (3) nor more than ten (10) Business Days, to acquire additional outstanding shares of Company Common Stock. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment and pay for (after giving effect to any required withholding tax pursuant to Section 3.05) all additional shares of Company Common Stock validly tendered during such subsequent offering period in accordance with the requirements of such Rule 14d-11.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in Annex I this Agreement, including the Offer Conditions. Parent and Merger Sub expressly reserve the right to waive, in whole or in part, any Offer Condition, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that no other conditions unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall applynot (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) provide that change the expiration date terms of the CPRs, (iv) change, modify or waive the Minimum Condition, (v) add to the conditions set forth in Annex A or modify or change any Offer Condition in any manner adverse to any shareholder of the Company, (vi) except as otherwise provided in this Section 1.01, extend or otherwise change the Expiration Time or (vii) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to any holders of the Company Common Stock.
(d) Subject to the terms and conditions of this Agreement, the Offer shall be expire at midnight (New York City time) on the date that is ten twenty (20) Business Days (for this purpose as calculated in accordance with under Rule 14d-1(g)(3) under the Exchange Act) following the filing commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such amendmentlater date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, and is referred to as the “Expiration Time”).
(ive) make such other amendments as are necessary or appropriate to conform Notwithstanding anything in this Agreement to the requirements of contrary, unless this Agreement. The Offer shall be subject to the condition that there shall be validly tendered Agreement has been terminated in accordance with its terms, Merger Sub shall, and Parent shall cause Merger Sub to, (i) extend the terms Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if on any then-scheduled Expiration Time any of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions Conditions set forth in Annex I A shall not be satisfied or waived, until such time as such condition or conditions are satisfied or waived; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (i) shall be twenty (20) Business Days, and provided that if the passage of time has made the satisfaction of an Offer Condition impossible, Parent shall not be required to no other conditions. Subject cause Merger Sub to extend the terms and conditions Offer pursuant to this clause (i), (ii) extend the Offer on one or more occasions, in consecutive increments of this Agreementup to five (5) Business Days each, including the prior satisfaction or waiver of the conditions if on any then-scheduled Expiration Time each Offer Condition set forth in Annex I A shall have been satisfied or waived, and the Minimum Condition shall not have been satisfied; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (ii) shall be twenty (20) Business Days, and (iii) extend the Offer for the minimum period required by applicable Law, any interpretation or position of the Securities and Exchange Commission (the “Offer ConditionsSEC”), promptly after the later of staff thereof, or the NASDAQ Stock Market (x“NASDAQ”) applicable to the earliest date as of which Offer; provided, however, that in no event (A) shall the Offer be extended beyond February 15, 2013 (the “Outside Date”); (B) shall Merger Subsidiary Sub extend the Offer if the Minimum Condition and all the Offer Conditions set forth in Annex A are satisfied or waived and it is permitted under applicable Law to accept for payment Shares and pay for validly tendered pursuant shares of Company Common Stock that are not validly withdrawn; or (C) shall this Section 1.01(e) be construed or deemed to impair, limit or otherwise restrict the right of the parties to terminate this Agreement in accordance with the terms and provisions of Article VIII. Except as otherwise expressly provided in this Section 1.01(e), the obligations of Merger Sub and Parent and the rights of Company to cause an extension of the Offer are cumulative so that, if at any time any of the foregoing is applicable, the Offer will be so extended further.
(f) On the terms and subject to the Offer and (y) the earliest date as of which each satisfaction or waiver by Merger Sub of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiaryas of the Expiration Time, Merger Subsidiary shall (Sub shall, and Parent shall cause Merger Subsidiary Sub to) consummate , accept and pay the Offer in accordance with its terms and accept Price (subject to any withholding of tax pursuant to Section 3.05) pursuant to Section 1.01(b) for payment each Share all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and promptly following re-extended in accordance with this Section 1.01). Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the acceptance funds necessary to pay for any shares of Shares Company Common Stock that Merger Sub becomes obligated to accept for payment pursuant to the Offer pay the Offer Price (without interest) and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement. Acceptance for each Share validly tendered and not properly withdrawn payment of shares of Company Common Stock pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in any manner adverse to this Agreement as the stockholders of the Company, “Offer Closing Date.”
(C) the expiration date shall not be extended except as otherwise provided herein, and (Dg) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company, except in the event that this Agreement is terminated in accordance with the terms and provisions of Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated pursuant to Section 11.01. Notwithstanding Article VIII, prior to the foregoing, (x) Merger Subsidiary shall (or at the request acceptance for payment of the CompanyCompany Common Stock tendered in the Offer, Parent Merger Sub shall promptly (and in any event within three (3) Business Days), return and cause any depository acting on behalf of Merger Subsidiary toSub to return, all tendered Company Common Stock to the registered holders thereof and, as applicable, take other necessary and appropriate actions as prescribed by Section 8.05 hereof.
(h) extend As soon as practicable on the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of the related letter of transmittal reflecting transmittal, ancillary documents and instruments, and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent and (ii) to Merger Sub in writing all information concerning the extent Company and its Subsidiaries that may be required by applicable U.S. federal securities laws, Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Parent and Merger Sub shall take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders shareholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company and its counsel with copies of all correspondence and summaries of telephonic communications between them and their Representatives, on the one hand, and the SEC, on the other hand, relating to the Offer Documents. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall be given provide the Company and its counsel a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated pursuant to Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) use its reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer within three (3) Business Days (and shall commence such Offer in any event within ten (10) Business Days) of the date of this Agreement.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not validly withdrawn prior to any then scheduled Expiration Time that would give rise number of shares of Company Common Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Fully Diluted Shares as of immediately prior to a right to terminate the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.01) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A, as such conditions may be modified in accordance with this Agreement (together with the Minimum Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, any shares tendered in the Offer pursuant to any guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures. Subject to the prior satisfaction of the conditions set forth Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in Annex I, accordance with its terms and accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the date hereof, but Expiration Time. The Offer Price payable in no event later than three Business Days following the public announcement respect of the execution each share of this Agreement, Merger Subsidiary shall amend Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), shall be paid net to the seller in cash, without interest (ii) provide that subject to any withholding of tax pursuant to Section 3.05), on the terms and subject to the conditions to the set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in Annex I this Agreement, including the Offer Conditions. Parent and Merger Sub expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that no other conditions unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall applynot (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) provide that change, modify or waive the Minimum Condition, (iv) add to the conditions set forth in Exhibit A or modify or change any Offer Condition in any manner adverse to any shareholders of the Company, (v) except as otherwise provided in this Section 1.01, extend or otherwise change the expiration date of the Offer or (vi) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to any shareholder of the Company.
(d) Subject to the terms and conditions of this Agreement, the Offer shall be expire at midnight (New York City time) on the date that is ten twenty (20) Business Days following the commencement (for this purpose calculated in accordance with within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following of the filing Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with its terms, 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 amendmentlonger period as the parties hereto may agree) each, if on any then-scheduled Expiration Time any of the Offer Conditions (other than the Minimum Condition) shall not be satisfied or waived, until such time as such condition or conditions are satisfied or waived; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (i) shall be twenty (20) Business Days, (ii) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days each, if on any then-scheduled Expiration Time each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived, and the Minimum Condition shall not have been satisfied; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (ii) shall be twenty (20) Business Days, (iii) extend the Offer, at the request of the Company, until the expiration of a twenty (20)-day cure period after a breach of this Agreement by the Company, if on any then-scheduled Expiration Time any of the Offer Conditions (other than the Minimum Condition) shall not be satisfied due to a breach of this Agreement by the Company that is capable of being cured (it being understood that a willful failure to comply with Section 6.04 in any material respect shall be deemed incapable of being cured), and (iv) make such other amendments as are necessary extend the Offer for the minimum period required by applicable Law, any interpretation or appropriate to conform position of the Securities and Exchange Commission (the “SEC”), the staff thereof, the NASDAQ Stock Market (“NASDAQ”) or the Chicago Stock Exchange, Inc. applicable to the requirements 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 (A) shall Merger Sub be required to extend the Offer beyond November 1, 2012 (the “Outside Date”) or (B) shall this AgreementSection 1.01(e) be construed or deemed to impair, limit or otherwise restrict in any manner the right of the parties to terminate this Agreement pursuant to Article VIII. The Merger Sub expressly reserves the right to, in its sole discretion, following the Offer shall Closing, make available one (1) or more “subsequent offering periods” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. Except as otherwise expressly provided in this Section 1.01(e), the rights of Company to cause an extension of the Offer are cumulative so that, if at any time any of the foregoing is applicable, the Offer will be so extended further.
(f) On the terms and subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which by Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each Sub of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiaryas of the Expiration Time, Merger Subsidiary shall (Sub shall, and Parent shall cause Merger Subsidiary Sub to) consummate , accept and pay the Offer in accordance with its terms and accept Price (subject to any withholding of tax pursuant to Section 3.05) pursuant to Section 1.01(b) for payment each Share all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and promptly following re-extended in accordance with this Section 1.01). Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the acceptance funds necessary to pay for any shares of Shares Company Common Stock that Merger Sub becomes obligated to accept for payment pursuant to the Offer pay the Offer Price (without interest) and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement. Acceptance for each Share validly tendered and not properly withdrawn payment of shares of Company Common Stock pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in any manner adverse to this Agreement as the stockholders of the Company, “Offer Closing Date.”
(C) the expiration date shall not be extended except as otherwise provided herein, and (Dg) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 11.01Article VIII. Notwithstanding If the foregoingOffer is terminated or withdrawn by Merger Sub, (x) Merger Subsidiary shall (or at this Agreement is terminated pursuant to Article VIII, prior to the request acceptance for payment of the CompanyCompany Common Stock tendered in the Offer, Parent Merger Sub shall promptly return (and in any event within three (3) Business Days), and shall cause any depository acting on behalf of Merger Subsidiary toSub to promptly return, all tendered Company Common Stock to the registered holders thereof.
(h) extend As soon as practicable on the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent and (ii) to Merger Sub in writing all information concerning the extent Company and its Subsidiaries that may be required by applicable U.S. federal securities laws, Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Parent and Merger Sub shall take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders shareholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, relating to the Offer Documents. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article 7 and none of the events or conditions set forth in Annex IA shall have occurred and be existing, by January 5, 2001, Parent shall cause Acquisition to commence, and Acquisition shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as promptly as practicable after amended (the date hereof"Exchange Act")) the Offer; and Parent and Acquisition shall use all reasonable efforts to consummate the Offer. Parent shall cause Acquisition to accept for payment, but in no event later than three Business Days and Acquisition shall accept for payment, Shares and Preferred Shares which have been validly tendered and not withdrawn pursuant to the Offer at the earliest time following the public announcement expiration of the execution of this Agreement, Merger Subsidiary shall amend initial offering period in the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the at which all conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmenthave been satisfied or waived by Acquisition, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer thereafter shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment additional Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share and/or Preferred Shares validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offerduring any subsequent offering period. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Acquisition to accept for payment, and pay the Offer Price (without interest) for, each Share validly for Shares and/or Preferred Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each condition that the sum of the Offer Conditions.
number of Shares validly tendered plus the number of Preferred Shares validly tendered shall be at least 25,562,006 shares (bthe "Minimum Condition") Merger Subsidiary and the other conditions set forth in Annex A hereto. Acquisition expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases increase the price per Share or price per Preferred Share payable in the Offer and to waive any condition of the Offer, except the Minimum Condition. Without the prior written consent of the Company, Acquisition shall not decrease the Per Share Amount or the Per Preferred Share Amount or change the form of consideration payable in the Offer, decrease the number of Shares or Preferred Shares sought to be purchased in the Offer, amends or adds impose additional conditions to the Offer Conditions or amends Offer, amend any other term of the Offer in any manner adverse to the stockholders holders of Shares or Preferred Shares, reduce the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to time period during which the Offer shall not remain open or waive the Minimum Condition. The Per Share Amount and the Per Preferred Share Amount shall be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable paid net to the Offer; provided that seller in no event shall Merger Subsidiary be cash, less any required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)withholding of taxes, in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the such conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after . The Company agrees that no Shares or Preferred Shares held by the expiration Company or any of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly its subsidiaries will be tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(cb) As promptly soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and Acquisition shall cause its Affiliates to, (i) file with the SEC an amendment Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which shall include a revised an offer to purchase and form of transmittal letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any supplements or amendments or supplements thereto, collectively the “"Offer Documents”"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act provisions of applicable federal securities laws. The information provided and to be provided by the rules Company, Parent and regulations thereunder and other applicable Law and that Acquisition for use in the Offer DocumentsDocuments shall not, when on the date filed with the SEC and on the date first published, published or sent or given to the stockholders of Company's stockholders, as the Companycase may be, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)misleading. Each of Parent, Merger Subsidiary Acquisition and the Company each agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shall, respect and shall cause its Affiliates to, use their respective reasonable best efforts Acquisition further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares and Preferred Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company .
(c) Subject to the terms and its counsel conditions thereof, the Offer shall be given a reasonable opportunity to review and comment (A) remain open until at least midnight, New York City time, on the Schedule TO and the Offer Documents each time before any such document date that is filed with the SEC twenty (20) business days after the date hereof the Offer is commenced (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of the Offer as so extended, also an "Expiration Date"); provided, however, that without the consent of the Company Board, Acquisition may: (Bi) on from time to time extend the Offer (each such individual extension not to exceed five (5) business days after the previously scheduled Expiration Date), if at the scheduled Expiration Date any correspondence with of the conditions of the Offer shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement; (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; or (including comment response lettersiii) concerning extend the Offer for a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) of up to twenty (20) business days in order to acquire over ninety percent (90%) of the outstanding Shares or Preferred Shares. Parent agrees to cause Acquisition to extend the Offer Documents, and Merger Subsidiary from time to time in accordance with this Section 1.1(c) for the shortest time periods which it reasonably believes are necessary until consummation of the Offer if the conditions of the Offer shall give reasonable and good faith consideration to any comments made by the Company and its counselnot have been satisfied or waived so long as this Agreement shall not have been terminated in accordance with Article 7 hereof. Parent and Merger Subsidiary Acquisition shall provide comply with the Company obligations respecting prompt payment and its counsel with any written or oral comments Parentannouncement under the Exchange Act, Merger Subsidiary or their respective Affiliates or counsel may receive from and, without limiting the SEC with respect generality of the foregoing, Acquisition shall, and Parent shall cause Acquisition to, accept for payment, and pay for, all Shares and Preferred Shares validly tendered and not withdrawn pursuant to the Offer Documents promptly, but in no event later than twenty-four hours, after promptly following the receipt acceptance of such comments, and, subject Shares and Preferred Shares for payment pursuant to the provisions hereof, promptly respond to such commentsOffer and this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Northrop Grumman Corp)
The Offer. (a) (i) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 8.1 and that would give rise to a right to terminate the Offer pursuant to any none of the conditions events set forth in Paragraph (2) of Annex II hereto shall exist or have occurred and be continuing, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of fifth business day after the execution of this Agreementdate hereof, Merger Subsidiary Sub shall, and Parent shall amend 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 to (i) increase purchase all of the purchase price to $6.50 per Share (outstanding shares of Company Common Stock at the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date . The obligations of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentMerger Sub to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform to the requirements cause Merger Sub to, accept for payment and pay for shares of this Agreement. The Offer shall be subject to the condition that there shall be Company Common Stock validly tendered in accordance with the terms of the Offer prior pursuant to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard subsequently withdrawn shall be subject only to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I hereto (the “Offer Conditions”), promptly after the later of (x) the earliest . The date as of on which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to Sub “commences” the Offer and (ywithin the meaning of Rule 14d-2 under the Exchange Act) is hereafter referred to as the earliest date as of which each of “Offer Commencement Date”. To the Offer Conditions has been satisfied, or waived extent permitted by Parent or Merger Subsidiaryapplicable Law, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Sub expressly reserves the right to waive any of the Offer Conditions and to make any other changes change in the terms of or conditions to the Offer; provided , except that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) Company, Merger Sub shall not (A) decrease the Minimum Condition may not be waivedOffer Price or change the form of the consideration payable in the Offer, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or decrease the number or percentage of Shares shares of Company Common Stock sought in pursuant to the Offer, amends (C) amend or adds waive the Minimum Tender Condition (as defined in Annex I), (D) impose any conditions to the Offer Conditions in addition to the conditions set forth on Annex I, (E) amend or amends any other term of modify the Offer in any a manner adverse to the stockholders holders of the Companyshares of Company Common Stock taken as a whole, or (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary toF) extend the Offer if at Expiration Date (as defined in Annex I) except as required or permitted by this Section 1.1(a) . The Expiration Date shall be the scheduled or extended expiration date of 20th Business Day next following the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied Commencement Date (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, calculated as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Rule 14d-1(a) (collectively, together with any amendments or supplements thereto, 3) under the “Offer Documents”Exchange Act), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
Sources: Merger Agreement (Natrol Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article VIII, as promptly as practicable after the date hereof, of this Agreement but in no event later more than three ten (10) Business Days following after the public announcement of the execution date of this Agreement, Merger Subsidiary Purchaser shall amend (and Parent shall cause Purchaser to) commence (within the Offer to (imeaning of Rule 14d-2 under the Exchange Act) increase the purchase price to $6.50 per Share (Offer; provided that the “Offer Price”), net Company agrees that no Shares owned by the Company or any of the Subsidiaries of the Company be tendered pursuant to the seller in cash, Offer.
(iib) provide that the conditions Subject to the Offer shall be as terms and conditions of this Agreement, including the prior satisfaction of the Minimum Condition and the satisfaction or waiver by Purchaser of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), after the Expiration Date (as defined herein) Purchaser shall (and that no Parent shall cause Purchaser to) consummate the Offer in accordance with its terms, and promptly accept for payment and promptly thereafter pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other conditions Offer Conditions. Purchaser expressly reserves the 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, however, without the prior written consent of the Company, Purchaser shall applynot (A) subject to adjustment pursuant to Section 1.1(f), decrease the Offer Price, (iiiB) provide that change the expiration date form of consideration payable in the Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) amend or modify any of the Offer Conditions in a manner that adversely affects holders of Shares generally, (E) change the Minimum Condition, (F) impose conditions to the Offer in addition to the Offer Conditions, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement, or (H) provide for a “subsequent offering period” (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall be expire at midnight (New York City time) on the date that is ten twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing commencement (within the meaning of such amendmentRule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of 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, being referred to as the “Expiration Date”).
(e) The Offer shall be subject extended from time to time as follows: (i) if, on the condition that there shall be validly tendered in accordance with scheduled Expiration Date, the terms Minimum Condition has not been satisfied or any of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has not been satisfied, or waived by Parent or Merger SubsidiaryPurchaser if permitted hereunder, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary then Purchaser shall extend the Offer for one or more periods of not more than five (5) Business Days each (or of not more than ten (10) Business Days each if the only Offer Condition(s) not yet satisfied is the Offer Condition relating either to the absence of Restraints or to the receipt of required regulatory approvals) (the length of such periods to be determined by Parent) or such other number of Business Days as the parties may agree (subject to the right of Purchaser to waive any Offer Condition (other than the Minimum Condition) in accordance with this Agreement and the parties’ respective rights to terminate this Agreement in accordance with Article VIII of this Agreement); and (ii) Purchaser shall extend the Offer for the minimum period required by any ruleapplicable Law or the applicable rules, regulationregulations, interpretation interpretations or position positions of the U.S. Securities and Exchange Commission (the “SEC”) SEC or its staff or the Nasdaq Global Market applicable to the Offer; provided that in no event NYSE. Purchaser shall Merger Subsidiary not be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is and shall not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to any event extend the Offer beyond the End Date. Following expiration Date without the Company’s prior written consent.
(f) The Offer Price shall be equitably adjusted, without duplication, to reflect the effect of any change in the fully diluted number of shares of capital stock of the OfferCompany as a result of any reclassification, Merger Subsidiary shallstock split (including a reverse stock split) or combination, if requested by merger, issuer tender, exchange or readjustment of shares or any stock dividend or stock distribution occurring on or after the Company, date hereof and at or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject prior to the foregoing, including the requirements of Rule 14d-11Offer Acceptance Time, and upon such adjustment to the Offer Price shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action; provided, however, that nothing in this Section 1.1(f) shall be deemed to permit or authorize the Company to effect any such change that it is not otherwise authorized or permitted to undertake pursuant to this Agreement.
(g) In the event that this Agreement is terminated pursuant to the terms and subject to the conditions of the Offerhereof, Merger Subsidiary shall, Purchaser shall (and Parent shall cause it Purchaser to, accept for payment ) promptly (and pay for, as promptly as practicable after the expiration in any event within twenty-four (24) hours of such termination) irrevocably and unconditionally terminate the Offer, all not acquire any Shares (1) validly tendered and not withdrawn pursuant to the Offer and cause any depository acting on behalf of Purchaser to return, in accordance with applicable Law, all tendered Shares to the registered holders thereof.
(2h) validly tendered in the Subsequent Offering Period (On the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Purchaser shall file with the SEC a Tender Offer Statement on which Shares are first accepted for paymentSchedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Acceptance DateSchedule TO”).
(c) As promptly as practicable after that will contain or incorporate by reference the date hereof, but in no event later than three Business Days following the public announcement Offer to Purchase and form of the execution related letter of this Agreement, Merger Subsidiary shalltransmittal and other appropriate ancillary offer documents, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement TO (collectively, together with any all exhibits, amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of SharesShares as and to the extent required by the Exchange Act and other applicable Laws. Each of Parent, Merger Subsidiary Purchaser and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, Parent further agrees to use their respective all reasonable best efforts to promptly cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as soon as reasonably practicable and to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish or otherwise make available to Parent and Purchaser or Parent’s legal counsel all information concerning the Company and its stockholders that may be required in connection with any action contemplated by this Section 1.1(h), including communicating the Offer to the record and beneficial holders of the Shares. Parent and Purchaser shall give (x) the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC after the date hereof and (By) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made the reasonable additions, deletions or changes suggested by the Company and its counselcounsel thereto. Parent and Merger Subsidiary shall Purchaser agree to provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary Purchaser or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject . Each of Parent and Purchaser shall respond promptly to any comments of the SEC or its staff with respect to the provisions hereofOffer Documents or the Offer. Parent and Purchaser agree to give (x) the Company and its counsel reasonable opportunity to review any proposed written or oral responses to any comments of the SEC or its staff with respect to the Offer Documents or the Offer and (y) reasonable and good faith consideration to the reasonable additions, promptly respond deletions or changes suggested thereto by the Company and its counsel and reasonable opportunity to such commentsparticipate in any substantive telephonic communications with the staff of the SEC related thereto. Notwithstanding the foregoing, the obligations of the Company in the immediately preceding three sentences shall not apply if the Company Board (or a committee thereof) effects a Company Adverse Recommendation Change in accordance with Section 6.3.
(i) Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iof this Agreement, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following five business days after the public announcement date of the execution and delivery of this Agreement, Merger Subsidiary Sub shall, and Parent shall amend cause Merger Sub to, commence the Offer to (i) increase within the purchase price to $6.50 per Share meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “"Exchange Act"). The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer Price”)and accept for payment, net to the seller in cashand pay for, (ii) provide that the conditions any shares of Company Common Stock tendered pursuant to the Offer shall be as subject to the conditions set forth in Annex I 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 may not waive the Minimum Tender Condition (as defined in Exhibit A)) and that no to --------- the other conditions shall apply, (iii) provide that the in this Agreement. The initial expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) 20th business day following the filing commencement of such amendment, and (iv) make such other amendments as are necessary or appropriate the Offer. Merger Sub expressly reserves the right to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with modify the terms of the Offer prior Offer, except that, without the consent of the Company, Merger Sub shall 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; (iii) modify or add to the conditions set forth in Exhibit A in any manner materially adverse to the holders of Company Common --------- Stock; (iv) extend the Offer; (v) change the form of consideration payable in the Offer; or (vi) otherwise amend the Offer in any manner adverse to the holders of Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company (w) extend the Offer, if at the scheduled expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock set forth herein or in Annex I (the “Offer Conditions”)Exhibit A are not satisfied, promptly after the later of until such time as such conditions are satisfied or waived; (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to extend the Offer and (y) for a period of not more than 15 business days beyond the earliest initial expiration date as of which each of the Offer Conditions has Offer, if on the date of such extension less than 90% of the outstanding shares of Company Common Stock have been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by applicable law, including any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market SEC applicable to the Offer; provided that in no event shall Merger Subsidiary be required to and (z) extend the Offer for any reason for a period of not more than 10 business days beyond the End Date unless latest expiration date that would otherwise be permitted under this Section 1.01(a). It is agreed that the conditions to the Offer are for the benefit of Parent and Merger Sub and may be asserted by Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration Sub regardless of the Offer, circumstances giving rise to any such condition (including any action or inaction by Parent or Merger Subsidiary shall, if requested by Sub not inconsistent with the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Actterms hereof). Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept pay for payment and pay for, as promptly as practicable after the expiration all shares of the Offer, all Shares (1) Company Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in that Merger Sub becomes obligated to purchase pursuant to the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly Offer as soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement expiration of the execution Offer.
(b) On the date of this Agreementcommencement of the Offer, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule 14D-1 with respect to the Schedule TOOffer, which shall include a revised contain, among other things, an offer to purchase and form of a related letter of transmittal reflecting and other ancillary documents (such Schedule 14D-l and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing"). Each of ParentParent and Merger Sub on the one hand, Merger Subsidiary and the Company agrees on the other hand, shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become is false or misleading in any material respect. Merger Subsidiary shall, and each of Parent and Merger Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Company's stockholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide promptly notify the Company and its counsel with regarding any written or oral comments that Parent, Merger Subsidiary Sub or their respective Affiliates counsel receive from the SEC or its staff with respect to the Offer Documents and shall promptly provide to the Company and its counsel may receive copies of such written comments, if any. The Company shall cooperate with Parent and Merger Sub in responding to any comments received from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject Documents.
(c) Subject to the provisions hereofterms and conditions of this Agreement, promptly respond Parent shall provide or cause to such commentsbe provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including as promptly as reasonably practicable (but in no event more than seven business days) after the day on which the Purchaser’s intention to make the Offer is publicly announced (which announcement will be made by the Parent on May 18, 2009) (it being understood that the Purchaser’s obligation to commence the Offer within the time period described in this sentence is conditioned upon the Company’s being prepared to file the Schedule 14D-9 approximately contemporaneously with the commencement of the Offer as provided in Section 1.2(b)), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer to purchase any and all outstanding shares of Company Common Stock at a price of $2.64 per share, net to the seller in cash, without interest thereon (the “Offer Consideration”). On the terms and subject to the prior satisfaction or waiver of the conditions set forth in Annex I (of the “Offer Conditions”)and this Agreement, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to Purchaser shall accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as all shares of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer and shall pay for all such shares of Company Common Stock promptly following after acceptance. The obligation of the acceptance of Shares Parent and the Purchaser to commence the Offer and to accept for payment pursuant to and pay for shares of Company Common Stock validly tendered in the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditionsconditions set forth in Annex I to this Agreement.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended The initial expiration date of the Offer shall be the 20th business day after commencement of the Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the Exchange Act). If on or prior to any then scheduled expiration date of the Offer, any of the conditions to the Offer shall not be satisfied have been satisfied, or waived, from time to time until such conditions are satisfied waived by the Parent or the Purchaser if permitted hereunder (other than any conditions which by their nature are to be satisfied on at the Acceptance DateTime), the Purchaser shall (and the Parent shall cause the Purchaser to) extend the Offer for periods of up to 10 business days each until the earlier of (x) the date on which all of the conditions and requirements set forth in Annex I are satisfied or waived; and waived or (y) Merger Subsidiary the date on which this Agreement is terminated in accordance with Section 9.1; provided, however, that in no event shall the Offer be extended beyond the Outside Date without the prior written consent of the Company. The Offer may not be terminated prior to its scheduled expiration (as such expiration may be extended and re-extended in accordance with this Agreement), unless this Agreement is terminated in accordance with Section 9.1. The Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, the Purchaser shall not:
(i) change the form of consideration payable in the Offer, decrease the Offer Consideration or decrease the number of shares of Company Common Stock sought pursuant to the Offer;
(ii) extend the expiration date of the Offer except (A) as required by applicable law (including for any period required by any rule, regulation, interpretation or position of the U.S. United States Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable staff thereof), (B) in accordance with the second sentence of Section 1.1(b) or (C) in connection with an increase in the consideration to be paid pursuant to the Offer; provided that in no event shall Merger Subsidiary be required Offer so as to extend comply with applicable rules and regulations of the SEC;
(iii) amend or waive the Minimum Condition;
(iv) amend any term of the Offer beyond in any manner adverse to holders of shares of Company Common Stock; or
(v) impose any condition to the End Date unless Parent or Merger Subsidiary is Offer not then permitted to terminate this Agreement set forth in Annex I. If fewer than 90% of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to Section 11.01(b)(ithe Offer (excluding for this purpose as shares that are tendered for payment pursuant to the Offer any shares that are tendered in the Offer pursuant to notices of guaranteed delivery), in which case Merger Subsidiary shall be required to extend the Offer beyond Purchaser may, without the End Date. Following expiration consent of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, elect to provide a subsequent offering period (“Subsequent Offering Period”) for the Offer in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements Exchange Act following its acceptance for payment of Rule 14d-11, and upon the terms and subject to the conditions shares of Company Common Stock in the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after On the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, the Parent and the Purchaser shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO, which TO shall include a revised contain an offer to purchase and (the “Offer to Purchase”), a form of the related letter of transmittal reflecting (the terms “Letter of Transmittal”), and conditions set forth in this Agreement ancillary documents and instruments pursuant to which the Offer will be made (collectively, together with any supplements or amendments or supplements thereto, the “Offer Documents”), . The Parent and (ii) to the extent required by applicable U.S. federal securities laws, cause Purchaser agree that the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and requirements of applicable U.S. federal securities laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date first filed with the SEC and on the date first published, sent or given to the stockholders of 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 (misleading, except that no covenant, agreement, representation or warranty is made by the Parent and Merger subsidiary shall have no obligation or the Purchaser with respect to any information in the Offer Documents supplied by the Company or any of its Representatives stockholders in writing)writing for inclusion or incorporation by reference in the Offer Documents. The Parent and the Purchaser shall take all steps necessary to cause the Offer Documents to be disseminated to holders of shares of Company Common Stock, as and to the extent required by applicable U.S. federal securities laws. Each of the Parent, Merger Subsidiary the Purchaser and the Company agrees shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and the Parent and the Purchaser shall cause its Affiliates totake all steps necessary to amend or supplement the Schedule TO and, use their respective reasonable best efforts as applicable, the Offer Documents and to cause the Schedule TO as so corrected amended and supplemented to be filed with the SEC and the Offer Documents as so corrected amended and supplemented to be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and upon the Offer Documents each time before and any such document is filed amendments thereto prior to the filing thereof with the SEC after or dissemination to the date hereof and (B) on any correspondence with stockholders of the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselCompany. The Parent and Merger Subsidiary the Purchaser shall provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments the Parent, Merger Subsidiary the Purchaser or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer promptly after the receipt thereof, shall consult with the Company and its counsel prior to responding to any such comments, and shall provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of the Parent or the Purchaser or their counsel. Each of Parent and the Purchaser shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after or the receipt Offer.
(d) The Parent shall provide or cause to be provided to the Purchaser on a timely basis the funds necessary to purchase any and all shares of Company Common Stock that the Purchaser becomes obligated to purchase pursuant to the Offer.
(e) The Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as the Purchaser reasonably determines that it is required to deduct and withhold with respect to the making of such commentspayment under the Internal Revenue Code of 1986, andas amended (the “Code”), subject to the provisions hereof, promptly respond to such commentsor under any other applicable law.
Appears in 1 contract
Sources: Merger Agreement (Idm Pharma, Inc.)
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth this Agreement and this Agreement not having been terminated in Annex Iaccordance with Article 10 hereof, as promptly as practicable but in any event within five business days after the date hereof, but in no event later than three Business Days following Merger Sub shall commence, within the public announcement meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and regulations promulgated thereunder, an offer to purchase (the "Offer") all of the execution outstanding shares of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase Common Stock at a price to of $6.50 3.46 per Share (the “Offer Price”)share of Common Stock, net to the seller in cash, without interest (ii) provide that the conditions such price or any higher price paid pursuant to the Offer, the "Offer shall be as set forth in Annex I Consideration"). Notwithstanding the foregoing, if between the date of this Agreement and that no other conditions shall apply, (iii) provide that the expiration date closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be midnight (New York City time) correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Purchaser and Merger Sub to commence the date that is ten Business Days (Offer and accept for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentpayment, and (iv) make such other amendments as are necessary or appropriate to conform pay for, any shares of Common Stock tendered pursuant to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I Exhibit A hereto and to no other conditions. Subject to the terms and conditions of this Agreement. Subject to the provisions of this Agreement, including the Offer shall expire 20 business days after the date of its commencement (the "Initial Offer Expiration Date"), 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) Purchaser and Merger Sub expressly reserve the right, in their sole discretion, to modify the terms of the Offer and to waive any condition of the Offer, except that, without the prior satisfaction written consent of the Company, Merger Sub shall not (and Purchaser shall cause Merger Sub not to) (i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iii) reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change the form of consideration payable in the Offer, (vi) amend or waiver modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in Annex I any manner adverse to any holder of Common Stock or (the “Offer Conditions”), promptly after the later of (xvii) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant impose additional conditions to the Offer other than such conditions required by applicable law. So long as this Agreement is in effect and (y) the earliest conditions to the Offer have not been satisfied or waived, Merger Sub may, without the consent of the Company, extend the expiration date as of which each of the Offer Conditions has for one or more periods of up to ten additional Business Days each (but in no event shall Merger Sub be permitted to extend the expiration date of the Offer beyond the fortieth business day after the date of this Agreement). So long as this Agreement is in effect and the conditions to the Offer have been satisfied, satisfied or waived by Parent or Merger Subsidiaryand such conditions shall not apply to any extension pursuant to this sentence, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate Sub may, without the consent of the Company, extend the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to Rule 14d-11 under the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price Exchange Act, if (without interesti) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term shares of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event Common Stock that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) have been validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.represent
Appears in 1 contract
Sources: Merger Agreement (Telelogic Ab)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Section 11.01 and none of the conditions events set forth in Annex II hereto shall have occurred and be continuing, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following business days, after the public announcement date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "Form TO/A"), an amended Offer to Purchase (the "Amended Offer to Purchase") and, if necessary, the related letter of transmittal and any related summary advertisement (the execution of this AgreementForm TO/A, Merger Subsidiary shall amend the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "Offer Documents") to reflect, among other things, an increase in the per share price to be paid in the Offer to (i) increase $30.00 and, if necessary, an extension of the purchase price currently scheduled expiration date to $6.50 per Share (allow the “Offer Price”), net to remain open for ten business days from the seller in cash, (ii) provide that date of such increase. The obligation of Merger Co. to consummate the conditions Offer and to accept for payment and to pay for shares of Company Common Stock tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, subject only to (iiii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares shares that, together with the Shares shares of Company Common Stock then owned by Parent and its Affiliatesand/or Merger Co., represents a majority 50.1% of the total number shares of Shares Company Common Stock outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “"Minimum Condition”") and to (ii) the other conditions set forth in Annex I and to no other conditionshereto. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Co. expressly reserves the right to waive any of such condition (other than the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that Minimum Condition, which shall not be waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company (which consent may be granted or withheld by Common Stock Amount. Notwithstanding the Company in its sole discretion) (A) the Minimum Condition may not be waivedforegoing, (B) no change may be made that which (i) decreases the Per Share of Company Common Stock Amount, (ii) changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends (iii) increases the Maximum Amount or adds the Minimum Condition, (iv) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (v) imposes conditions to the Offer Conditions in addition to those set forth in Annex I hereto, (vi) except as specifically provided for in this Section 2.01(a), extends the expiration date of the Offer or (vii) otherwise alters or amends any other term of the Offer in any manner adverse to the stockholders holders of shares of Company Common Stock; provided, however, that the Company, (C) the expiration date shall not Offer may be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period to the extent required by law or by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event . Parent and Merger Co. shall Merger Subsidiary be required to extend comply with the Offer beyond obligations respecting prompt payment and announcement under the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)Exchange Act, in which case Merger Subsidiary shall be required to extend and, without limiting the Offer beyond the End Date. Following expiration generality of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon subject to the terms and subject conditions of this Agreement, including but not limited to the conditions of the Offer, Merger Subsidiary shall, Co. shall and Parent shall cause it Merger Co. to, accept for payment and pay for, for shares of Company Common Stock tendered pursuant to the Offer as promptly soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in Section 2.01(d) or 2.01(f), Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the expiration of the Offer, all Shares (1) Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, together with the shares of Company Common Stock then owned by Parent and (2) validly tendered in Merger Co., will represent 50.1% of the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)shares of Company Common Stock outstanding.
(cb) As Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and none of the events set forth in Annex II hereto shall have occurred and be continuing, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent shall cause Merger Subsidiary shallCo. to, and Merger Co. shall cause its Affiliates to(i) commence the Exchange Offer pursuant to which Merger Co. shall offer to issue a number of duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Offer Ratio (as defined below) for each then issued and outstanding share of Company Common Stock (other than shares of Company Common Stock then owned by Parent or Merger Co.), (iii) file with the SEC, to the extent required by the Exchange Act, a Form TO (the "Exchange Form TO"), an Offer to Exchange (the "Offer to Exchange") and the related letter of transmittal and any related summary advertisement (the Exchange Form TO, the Offer to Exchange and such other documents, together with all amendments and supplements thereto, the "Exchange Offer Documents") and (iii) file with the SEC an amendment a Registration Statement on Form S-4 (the "Exchange Form S-4") to register under the Securities Act the securities to be issued in the Exchange Offer. The obligation of Merger Co. to consummate the Exchange Offer and to issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Schedule TO, which Exchange Offer shall include a revised offer be subject only to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Annex II hereto. Merger Co. expressly reserves the right to waive any such condition (collectivelyother than the condition that at least five business days have elapsed since the acceptance for payment and payment for a number of shares of Company Common Stock pursuant to the Offer representing, together with any amendments shares of Company Common Stock previously owned by Parent, at least 50.1% of the issued and outstanding shares of Company Common Stock and the subsequent delivery of shares of Company Common Stock not purchased in the Offer to the Depositary under the Exchange Offer, which condition shall not be waived without the prior written consent of the Company) and to increase the Exchange Offer Ratio. Notwithstanding the foregoing, no change may be made which (i) decreases, or supplements theretowould have the effect of decreasing, the “Exchange Offer Documents”)Ratio, and (ii) changes the form of consideration to be paid in the Exchange Offer, (iii) reduces the number of shares of Company Common Stock sought to be purchased in the Exchange Offer, (iv) imposes conditions to the Exchange Offer in addition to those set forth in Annex II hereto, (v) extends the expiration date of the Exchange Offer or (vi) otherwise alters or amends any term of the Exchange Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that the Exchange Offer may be extended (x) for any period to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed law or by any rule, regulation, interpretation or position of them the SEC or the staff thereof applicable to the Exchange Offer or (y) if the number of shares of Company Common Stock validly tendered in accordance with the SEC to comply in all material respects Exchange Offer, together with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documentsshares of Company Common Stock owned by Parent as of such date, when filed with the SEC and on the date first published, sent or given to the stockholders is less than 90% of the Companyoutstanding shares of Company Common Stock, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light as of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company scheduled or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselextended expiration date. Parent and Merger Subsidiary Co. shall provide comply with the Company obligations respecting prompt delivery of shares of Parent Common Stock and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from announcement under the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such commentsExchange Act, and, without limiting the generality of the foregoing, subject to the provisions hereofterms and conditions of this Agreement, promptly respond including but not limited to the conditions of the Exchange Offer, Merger Co. shall and Parent shall cause Merger Co. to, accept for exchange and issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Exchange Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Exchange Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such commentsextension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in Section 2.01(d) or 2.01(f), Merger Co. shall not terminate the Exchange Offer without accepting shares of Company Common Stock and issuing shares of Parent Common Stock pursuant to the Exchange Offer. Notwithstanding anything to the contrary set forth herein, no certificates representing fractional shares of Parent Common Stock shall be issued in connection with the Exchange Offer, and in lieu thereof each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock in the Exchange Offer will be paid an amount in cash equal to the product obtained by multiplying (A) the fractional share interest to which such holder would otherwise be entitled by (B) the Average Exchange Offer Price (as defined below).
(c) For purposes of this Section 2.01, "Exchange Offer Ratio" means the number of shares of Parent Common Stock determined as set forth below:
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise been terminated in accordance with Section 9.1 and the Company is prepared in accordance with Section 2.2(a) to a right file with the SEC, and to terminate disseminate to the Offer pursuant to any of Stockholders, the conditions set forth in Annex ISchedule 14D-9 on the same date as Merger Sub commences the Offer, as promptly as practicable after the date hereof, (but in no event later than three 10 Business Days following Days) after the public announcement of the execution of this Agreementdate hereof, Merger Subsidiary Sub shall, and Parent shall amend cause Merger Sub to, commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act), the Offer.
(b) following the filing The obligations of such amendmentMerger Sub to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock pursuant to the requirements of this Agreement. The Offer shall be are subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject only to the terms and conditions of this Agreement, including the prior satisfaction or waiver (as provided in Section 2.1(c) below) of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant . Subject only to the Offer and (y) satisfaction or, to the earliest date as of which each of the Offer Conditions has been satisfied, or waived extent waivable by Parent or Merger SubsidiarySub, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, Sub of each of the Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer (the “Tendered Shares”) as promptly as practicable on or after the Expiration Date. The acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing,” and the date and time at which the Offer Closing occurs is referred to in this Agreement as the “Acceptance Time.” Parent shall provide, or cause to be provided, to Merger Sub on a timely basis funds necessary to purchase and pay for any and all shares of Company Common Stock that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and this Agreement. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective controlled Affiliates shall, tender any shares of Company Common Stock held by them into the Offer.
(bc) Parent and Merger Subsidiary Sub expressly reserves reserve the right to waive any of the Offer Conditions and Conditions, to increase the Offer Price or to make any other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the terms of this Agreement; provided that without the prior consent of the Company (which consent may be granted that, unless otherwise or withheld previously approved by the Company in its sole discretionwriting, Parent and Merger Sub shall not: (i) (A) decrease the Minimum Condition may not be waived, (B) no Offer Price or change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (ii) decrease the maximum number of shares of Company Common Stock subject to or adds sought to be purchased in the Offer, (iii) impose conditions on the Offer in addition to the Offer Conditions Conditions, (iv) waive, modify or amends amend the Minimum Condition or the Antitrust and Judgment/Illegality Conditions, (v) amend any other term of the Offer in a manner that would reasonably be expected to adversely affect any manner adverse Stockholder in its capacity as such, (vi) extend or otherwise change the Expiration Date except as required or permitted by Section 2.1(e) or (vii) provide any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 promulgated under the Exchange Act. The Offer may not be terminated prior to the stockholders of the CompanyExpiration Date (or any rescheduled Expiration Date), (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that unless this Agreement is validly terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of Section 9.1.
(d) On the 1934 Act. Subject to date the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer is commenced, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which Tender Offer Statement shall include a revised an offer to purchase and form purchase, forms of the letter of transmittal reflecting transmittal, summary advertisement and other required ancillary offer documents (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders the Stockholders to the extent required by applicable Law. The Company hereby consents to the inclusion of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they Recommendation in the Offer Documents. Merger Sub shall, and Parent shall cause Merger Sub to, cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and Exchange Act, the rules and regulations thereunder thereunder, and other requirements of applicable Law Law. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company and the Stockholders that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact may be 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 Parent and Merger subsidiary shall have no obligation with respect to any information set forth in the Offer Documents supplied or reasonably requested in connection with any action contemplated by this Section 2.1(d), including communication of the Company or its Representatives in writing)Offer to the record and beneficial Stockholders. Each of Parent, Merger Subsidiary and the Company parties agrees to promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates toto correct any material omissions therefrom, use their respective reasonable best efforts and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesthe Stockholders, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselLaw. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with any written or oral comments that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the Stockholders, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company with a reasonable opportunity to review and comment on such Offer Documents promptlyor response, but and Parent and Merger Sub shall give reasonable consideration to any comments provided by the Company. Parent and Merger Sub shall use reasonable efforts to respond promptly to any such SEC comments.
(e) Unless extended or earlier terminated pursuant to and in no event accordance with the terms of this Agreement, the Offer shall remain open until one minute after 11:59 p.m., New York City time, on the 20th business day (for purposes of this Section 2.1(e), calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, if the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Agreement or as may be required by applicable Law, the time and date to which the Offer has been so extended (the Initial Expiration Date or such later time and date to which the Offer has been extended in accordance with this Agreement, the “Expiration Date”). Notwithstanding the foregoing, (i) if as of the then-effective Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub may, and Parent may cause Merger Sub to, in the Parent’s and Merger Sub’s sole discretion and without the consent of the Company, extend the Offer on one or more occasions in consecutive increments of not more than twenty-four hours, after 20 Business Days each (the receipt length of such commentsperiod to be determined by Parent and Merger Sub in their discretion), and, or for such longer period as the parties may agree in order to permit the satisfaction of such Offer Conditions (subject to the provisions hereofright of Parent or Merger Sub to waive any Offer Conditions, other than the Minimum Condition), (ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for (x) the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff and (y) periods of not more than 10 Business Days per extension, until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act shall have expired or been terminated and (iii) if, as of the scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived, at the request of the Company, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer on one or more occasions in consecutive increments of not more than 10 Business Days each; provided that Merger Sub shall not in any event be required to, and Parent shall not in any event be required to cause Merger Sub to, extend the Offer beyond the Outside Date; provided further that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Initial Expiration Date on more than three occasions, not to exceed an aggregate of 30 Business Days (provided that each such extension will be 10 Business Days unless the Company agrees otherwise), if, as of the applicable Expiration Date, all of the Offer Conditions are satisfied or have been waived other than the Minimum Condition and conditions which by their nature are to be satisfied at the expiration of the Offer. In the event that this Agreement is validly terminated pursuant to Section 9.1, Merger Sub shall, and Parent shall cause Merger Sub to, promptly respond (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares of Company Common Stock pursuant to such commentsthe Offer 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.
Appears in 1 contract
Sources: Merger Agreement (Arqule Inc)
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iof this Agreement, as promptly as practicable after the date hereof, but in no event later than three Business Days following five business days after the date of the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”)Sub shall, net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary Sub to) consummate , commence the Offer in accordance with its terms within the meaning of the applicable rules and accept for payment each Share validly tendered regulations of the Securities and not properly withdrawn pursuant to Exchange Commission (the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer"SEC"). The obligation obligations of Merger Subsidiary (Sub to, and of Parent to cause Merger Subsidiary) to Sub to, commence the Offer and accept for payment, and pay the Offer Price (without interest) for, each Share validly any shares of Target Common Stock tendered and not properly withdrawn pursuant to the Offer shall be are subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary conditions set forth in Exhibit A. Sub expressly reserves the right to waive any of condition to the Offer Conditions and to make any other changes in or amend or modify the terms of or conditions the Offer, except that, without the consent of Target, Sub shall not (i) reduce the number of shares of Target Common Stock subject to the Offer; provided that without , (ii) reduce the prior consent price per share of Target Common Stock to be paid pursuant to the Company Offer, (which consent may be granted or withheld by the Company in its sole discretioniii) (A) waive the Minimum Condition may not be waivedTender Condition, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Target Common Stock, (Biv) no except as provided in the next sentence, extend the Offer, (v) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends Offer or adds to the Offer Conditions or amends any other term of (vi) otherwise amend the Offer in any manner adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01Target Common Stock. Notwithstanding the foregoing, Sub may, without the consent of Target, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary toA) extend the Offer Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall Sub's obligation to purchase shares of Target Common Stock are not be satisfied, until such time as such conditions are satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance DateB) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided Offer and (C) extend the Offer for any reason on one or more occasions for a period of not more than five business days beyond the latest expiration date that in no event would otherwise be permitted under clause (A) or (B) of this sentence. Parent and Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then, PROVIDED that all such conditions are reasonably capable of being satisfied, Sub shall Merger Subsidiary extend the Offer from time to time until such conditions are satisfied or waived, PROVIDED that Sub shall not be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Outside Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Sub to, accept pay for payment and pay for, as promptly as practicable after the expiration all shares of the Offer, all Shares (1) Target Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in that Sub becomes obligated to purchase pursuant to the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly Offer as soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement expiration of the execution Offer.
(b) On the date of this Agreementcommencement of the Offer, Merger Subsidiary shall, Parent and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which shall include a revised contain an offer to purchase and form of a related letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), . Parent and (ii) to the extent required by applicable U.S. federal securities laws, cause Sub agree that the Offer Documents shall comply as to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply form in all material respects with the Securities Exchange Act of 1934 Act (the "Exchange Act"), and the rules and regulations promulgated thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the CompanyTarget'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 (misleading, except that no representation or warranty is made by Parent and Merger subsidiary shall have no obligation or Sub with respect to information supplied by Target or any information of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents supplied by the Company or its Representatives in writing)Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees Target shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and each of Parent and Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected amended or supplemented to be disseminated to holders of SharesTarget's stockholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Company Target and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC after or dissemination to the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselstockholders of Target. Parent and Merger Subsidiary Sub shall provide the Company Target and its counsel in writing with any written or oral comments Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject .
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to purchase any shares of Target Common Stock that Sub becomes obligated to purchase pursuant to the provisions hereof, promptly respond to such commentsOffer.
Appears in 1 contract
Sources: Merger Agreement (Vivendi Universal)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Section 7.1 and none of the events or conditions set forth in Annex IA (the "Offer Conditions") shall have occurred and be existing, as promptly as practicable after the date hereofpracticable, but in no event later than three five (5) Business Days following after the public announcement of the execution of this Agreement, Merger Subsidiary Acquisition shall amend commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer to (i) increase for all the purchase price to $6.50 per issued and outstanding shares of Company Common Stock, at the Per Share (the “Offer Price”), net Amount. Acquisition shall accept for payment all outstanding shares of Company Common Stock which have been validly tendered and not withdrawn pursuant to the seller in cash, (ii) provide Offer at the earliest time following the expiration of the Offer that the all conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has have been satisfied, satisfied or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the OfferAcquisition. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Acquisition to accept for payment, purchase and pay the Offer Price (without interest) for, each Share validly for shares of Company Common Stock tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfactionOffer Conditions, or waiver by Parent or Merger Subsidiary, including the condition that a number of each shares of Company Common Stock representing that number of shares of Company Common Stock which would equal more than fifty percent (50%) of the shares of Company Common Stock then issued and outstanding on a fully-diluted basis shall have been validly tendered and not withdrawn prior to the expiration date of the Offer Conditions.
(b) Merger Subsidiary the "Minimum Condition"). Acquisition expressly reserves the right to increase the price per share of Company Common Stock payable in the Offer, to waive any of the conditions of the Offer Conditions and or to make any other changes in the terms and conditions of or conditions to the Offer; provided that without the prior consent of Offer (PROVIDED that, unless previously approved by the Company (which consent may such approval to be granted or withheld by obtained from the Company Board) in its sole discretion) (A) the Minimum Condition may not be waivedwriting, (B) no change may be made that which decreases the Per Share Amount payable in the Offer, which changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends or adds which reduces the maximum number of shares of Company Common Stock to be purchased in the Offer, which imposes conditions to the Offer in addition to the Offer Conditions or amends any other term of which broadens the Offer in any manner adverse scope thereof). The Per Share Amount shall be paid net to the stockholders seller in cash, LESS any required withholding of the Companytaxes, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the such conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the The Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any no shares of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied Company Common Stock held by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use subsidiaries will be tendered in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false Offer. "Business Day" means any day other than Saturday, Sunday or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. a federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsholiday.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Huntsman Packaging Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise been terminated in accordance with Section 7.1, as promptly as practicable and in any event within seven business days after the date hereof, Parent or Sub shall, and Parent shall cause Sub to, as the first step in completing the Merger, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), an offer (the "Offer") to a right purchase all of the issued and outstanding Shares, together with the associated rights issued pursuant to terminate the Company's Rights Plan (as defined herein) (the "Company Rights") for the Offer pursuant Price, subject to any of the conditions set forth in Annex IExhibit A hereto; provided, however, that Parent may designate itself or another wholly owned Subsidiary of Parent as the bidder (within the meaning of Rule 14d-1(g)(2) under the Exchange Act) in the Offer, in which case reference herein to Sub shall be deemed to apply to Parent or such Subsidiary, as promptly as practicable after appropriate. Except where the date hereofcontext otherwise requires, but in no event later than three Business Days following all references herein to Shares or the public announcement Company's common stock shall include the associated Company Rights. The Company shall not tender Shares held by it or by any of its Subsidiaries pursuant to the Offer. Parent or Sub shall, and Parent shall cause Sub to, on the terms and subject to the prior satisfaction or waiver of the execution conditions of this Agreement, Merger Subsidiary shall amend the Offer set forth in Exhibit A hereto, accept for payment and pay for Shares tendered and not validly withdrawn within three business days of the Acceptance Date. The obligations of Parent or Sub to (i) increase consummate the purchase price Offer and to $6.50 per Share (the “Offer Price”), net accept for payment and to pay for any Shares validly tendered on or prior to the seller in cash, (ii) provide that expiration of the Offer and not validly withdrawn shall be subject only to the conditions to the set forth in Exhibit A hereto.
(b) The Offer shall be as made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in Annex I this Agreement and that no other the conditions shall apply, (iii) provide that the set forth in Exhibit A hereto and providing for an initial expiration date (as may be extended as provided in this clause (b), the "Expiration Date") of the Offer shall be midnight twenty business days (New York City time) on the date that is ten Business Days (for this purpose calculated as defined in accordance with Rule 14d-1(g)(3) under the Exchange Act) following from the filing date of such amendment, and commencement (ivincluding the date of commencement) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer Offer. Without the prior to the expiration date written consent of the Offer and not withdrawnCompany, a number of Shares that, together with the Shares then owned by Parent and its AffiliatesSub shall not, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary Sub not to) consummate , decrease the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for paymentPrice, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or decrease the number of Shares sought in the Offersought, amends or adds impose conditions to the Offer Conditions in addition to those set forth in Exhibit A, change or amends waive the Minimum Condition, or otherwise amend any other material term or condition of the Offer in any a manner adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01Shares. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at without the request consent of the Company, Parent or Sub shall cause Merger Subsidiary tobe entitled (and, if any condition set forth in clause (i), clause (ii), or subclauses (a), (b), (c), or (d) of clause (iii), of Exhibit A shall exist Parent or Sub shall be required in any case where it is reasonably possible that such condition could be remedied by the Final Date (as hereinafter defined)) to extend the Offer at any time for such time periods that it reasonably believes are necessary, if at the scheduled initial Expiration Date, or extended expiration date of the Offer any of the conditions extension thereof, any condition to the Offer shall is not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in . In no event shall Merger Subsidiary Parent or Sub be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Final Date. Following expiration In addition, if the Minimum Condition has been met but less than 90% of the Offer, Merger Subsidiary shall, if requested by the Company, or may, outstanding Shares on a fully-diluted basis (as defined in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”Exhibit A) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) have been validly tendered and not withdrawn pursuant to the Offer and (2) not validly tendered in withdrawn as of the Subsequent Offering Period scheduled or extended expiration date, Parent or Sub may, without the consent of the Company, extend the Offer after the acceptance of Shares thereunder for a further period of time, not to exceed an aggregate of ten business days, by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law or the United States Securities and Exchange Commission (the date on which Shares are first accepted for payment, "SEC") in connection with such increase in each case without the “Acceptance Date”)consent of the Company.
(c) As promptly soon as practicable after the date hereof and in any event within seven business days after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and Parent shall cause its Affiliates to, (i) file with the SEC an amendment SEC, a Tender Offer Statement on Schedule TO (the "Schedule TO") with respect to the Schedule TOOffer, which shall include a revised offer to purchase will comply in all material respects with the provisions of, and satisfy in all material respects the requirements of, such Schedule TO and all applicable federal securities laws, and will contain or incorporate by reference all or part of the form of the related letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectivelysuch documents, together with any supplements or amendments or supplements thereto, collectively the “"Offer Documents”), ") and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of SharesShares to the extent required by applicable securities laws. Each of Parent, Merger Subsidiary and On the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date filed with the SEC and on the date first published, sent or given to the stockholders holders of Shares, the Company, 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 (misleading, except that neither Parent nor Sub is responsible for information supplied by the Company for inclusion in the Offer Documents. The Company shall provide Parent and Merger subsidiary shall have no obligation with respect to any Sub all information reasonably requested by Parent or Sub for inclusion in the Offer Documents supplied by the Company and any exhibits or its Representatives in writing)annexes thereto. Each of Parent, Merger Subsidiary Parent and the Company each agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall be, or shall have become become, false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company .
(d) No filing of, or amendment or supplement to, or correspondence to the SEC or its staff with respect to, the Schedule TO or the Offer Documents will be made by the Company, Parent or Sub, without providing the other party and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsthereon. In addition, Parent shall, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall cause Sub to, provide the Company and its counsel in writing with any written or oral comments that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such commentscomments and with copies of any written responses and telephonic notification of any verbal responses by Parent, and, subject to the provisions hereof, promptly respond to such commentsSub or their counsel.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred been terminated pursuant to Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) use its reasonable best efforts to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer within three (3) Business Days (and shall commence such Offer in any event within ten (10) Business Days) of the date of this Agreement.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and pay for any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not validly withdrawn prior to any then scheduled Expiration Time that would give rise number of shares of Company Common Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Fully Diluted Shares as of immediately prior to a right to terminate the expiration of the Offer (as it may be extended and re-extended in accordance with this Section 1.01) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Exhibit A, as such conditions may be modified in accordance with this Agreement (together with the Minimum Condition, the “Offer Conditions”). For purposes of determining whether the Minimum Condition has been satisfied, any shares tendered in the Offer pursuant to any guaranteed delivery procedures shall be included only if such shares have been delivered pursuant to such procedures. Subject to the prior satisfaction of the conditions set forth Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions as of the Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Offer in Annex I, accordance with its terms and accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the date hereof, but Expiration Time. The Offer Price payable in no event later than three Business Days following the public announcement respect of the execution each share of this Agreement, Merger Subsidiary shall amend Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), shall be paid net to the seller in cash, without interest (ii) provide that subject to any withholding of tax pursuant to Section 3.05), on the terms and subject to the conditions to the set forth in this Agreement.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in Annex I this Agreement, including the Offer Conditions. Parent and Merger Sub expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition, to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that no other conditions unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall applynot (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) provide that change, modify or waive the Minimum Condition, (iv) add to the conditions set forth in Exhibit A or modify or change any Offer Condition in any manner adverse to any shareholders of the Company, (v) except as otherwise provided in this Section 1.01, extend or otherwise change the expiration date of the Offer or (vi) otherwise amend, modify or supplement any of the other terms of the Offer in any manner adverse to any shareholder of the Company.
(d) Subject to the terms and conditions of this Agreement, the Offer shall be expire at midnight (New York City time) on the date that is ten twenty (20) Business Days following the commencement (for this purpose calculated in accordance with within the meaning of Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following of the filing Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement to the contrary, unless this Agreement has been terminated in accordance with its terms, 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 amendmentlonger period as the parties hereto may agree) each, if on any then-scheduled Expiration Time any of the Offer Conditions (other than the Minimum Condition) shall not be satisfied or waived, until such time as such condition or conditions are satisfied or waived; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (i) shall be twenty (20) Business Days, (ii) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days each, if on any then-scheduled Expiration Time each Offer Condition (other than the Minimum Condition) shall have been satisfied or waived, and the Minimum Condition shall not have been satisfied; provided, however, that the maximum number of days that the Offer may be extended pursuant to this clause (ii) shall be twenty (20) Business Days, (iii) extend the Offer, at the request of the Company, until the expiration of a twenty (20)-day cure period after a breach of this Agreement by the Company, if on any then-scheduled Expiration Time any of the Offer Conditions (other than the Minimum Condition) shall not be satisfied due to a breach of this Agreement by the Company that is capable of being cured (it being understood that a willful failure to comply with Section 6.04 in any material respect shall be deemed incapable of being cured), and (iv) make such other amendments as are necessary extend the Offer for the minimum period required by applicable Law, any interpretation or appropriate to conform position of the Securities and Exchange Commission (the “SEC”), the staff thereof, the NASDAQ Stock Market (“NASDAQ”) or the Chicago Stock Exchange, Inc. applicable to the requirements 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 (A) shall Merger Sub be required to extend the Offer beyond November 1, 2012 (the “Outside Date”) or (B) shall this AgreementSection 1.01(e) be construed or deemed to impair, limit or otherwise restrict in any manner the right of the parties to terminate this Agreement pursuant to Article VIII. The Merger Sub expressly reserves the right to, in its sole discretion, following the Offer shall Closing, make available one (1) or more “subsequent offering periods” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents may, in Merger Sub's sole discretion, provide for such a reservation of right. Except as otherwise expressly provided in this Section 1.01(e), the rights of Company to cause an extension of the Offer are cumulative so that, if at any time any of the foregoing is applicable, the Offer will be so extended further.
(f) On the terms and subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which by Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each Sub of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiaryas of the Expiration Time, Merger Subsidiary shall (Sub shall, and Parent shall cause Merger Subsidiary Sub to) consummate , accept and pay the Offer in accordance with its terms and accept Price (subject to any withholding of tax pursuant to Section 3.05) pursuant to Section 1.01(b) for payment each Share all shares of Company Common Stock validly tendered and not properly validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Time (as it may be extended and promptly following re-extended in accordance with this Section 1.01). Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the acceptance funds necessary to pay for any shares of Shares Company Common Stock that Merger Sub becomes obligated to accept for payment pursuant to the Offer pay the Offer Price (without interest) and shall cause Merger Sub to fulfill all of Merger Sub's obligations under this Agreement. Acceptance for each Share validly tendered and not properly withdrawn payment of shares of Company Common Stock pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in any manner adverse to this Agreement as the stockholders of the Company, “Offer Closing Date.”
(C) the expiration date shall not be extended except as otherwise provided herein, and (Dg) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Time without the prior written consent of the Company, except in the event that this Agreement is terminated pursuant to Section 11.01Article VIII. Notwithstanding If the foregoingOffer is terminated or withdrawn by Merger Sub, (x) Merger Subsidiary shall (or at this Agreement is terminated pursuant to Article VIII, prior to the request acceptance for payment of the CompanyCompany Common Stock tendered in the Offer, Parent Merger Sub shall promptly return (and in any event within three (3) Business Days), and shall cause any depository acting on behalf of Merger Subsidiary toSub to promptly return, all tendered Company Common Stock to the registered holders thereof.
(h) extend As soon as practicable on the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Parent and Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent and (ii) to Merger Sub in writing all information concerning the extent Company and its Subsidiaries that may be required by applicable U.S. federal securities laws, Laws or reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents. Parent and Merger Sub shall take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders shareholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the shareholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their Representatives, on the one hand, and the SEC, on the other hand, relating to the Offer Documents. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsresponse, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VIII, and that no event shall have occurred that and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable (and in any event within five (5) Business Days) after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Acquisition Sub shall (and Parent shall cause Merger Subsidiary Acquisition Sub to) consummate commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer in accordance with its terms to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Offer, and the obligation of Acquisition Sub to accept for payment each Share and pay for any shares of Common Stock tendered pursuant to the Offer, shall be subject to: (i) there being validly tendered in the Offer and not properly withdrawn prior to the Expiration Date that number of shares of Common Stock which, together with the number of shares of Common Stock (if any) then owned of record by Parent or Acquisition Sub or with respect to which Parent or Acquisition Sub otherwise has, directly or indirectly, sole voting power, represents at least 60% of the shares of Common Stock then outstanding (determined on a fully diluted basis) and no less than 60% of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) and entitled to vote in the election of directors (collectively, the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I. The conditions to the Offer set forth in Annex I are for the sole benefit of Parent and Acquisition Sub and may be asserted by Parent or Acquisition Sub regardless of the circumstances (including any action or inaction by Parent or Acquisition Sub, provided that nothing therein shall relieve any party hereto from any obligation or liability such party has under the Agreement) giving rise to such condition or may be waived by Parent or Acquisition Sub, in their sole discretion, in whole or in part at any time and from time to time, subject to this Section 2.1.
(b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the Offer and as promptly following as possible on or after the acceptance of Shares for payment pursuant to the Offer pay the applicable Expiration Date. The Offer Price (without interest) for payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation share of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest, subject to any withholding of Taxes required by Parent or Merger Subsidiary, applicable Law.
(c) The Offer shall be made by means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer Conditions.
(b) Merger Subsidiary in accordance with this Agreement, including the Minimum Condition and the other conditions and requirements set forth in Annex I. Parent and Acquisition Sub expressly reserves reserve the right to waive any of increase the Offer Conditions and Price, to make any other changes in the terms and conditions of the Offer or conditions to waive any condition of the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld provided, however, unless previously approved by the Company in its sole discretionwriting, Parent and Acquisition Sub shall not: (i) (A) decrease the Minimum Condition may not be waivedOffer Price, (Bii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (iii) reduce the maximum number of shares of Common Stock to be purchased in the Offer, (iv) amend or adds to waive the Offer Conditions Minimum Condition or amends the conditions set forth in clauses (b) or (c)(i) of Annex I or (v) amend any other term or condition of the Offer in any a manner adverse to the stockholders holders of Common Stock.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 9:00 a.m. (New York City time) on the date that is twenty-two (22) Business Days following the commencement of the CompanyOffer (such time and date, the “Initial Expiration Date”) or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (Cthe Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on or prior to any then scheduled Expiration Date, all of the expiration date conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied (provided that, solely for purposes of determining whether the Minimum Condition has been satisfied in determining whether the Offer should be extended under the first sentence of this Section 2.1(e), shares of Common Stock subject to a Support Agreement shall be deemed to have been tendered into the Offer so long as the stockholder party thereto is not then in breach of its tender obligations thereunder) or, to the extent waivable by the Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to twenty (20) Business Days if the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such conditions; provided, however, that, Acquisition Sub shall not be required to extend the Offer beyond August 24, 2010 (the “Outside Date”) and shall not extend the Offer beyond the Outside Date without the Company’s consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff. Notwithstanding the foregoing, (i) Acquisition Sub may extend the Offer, in its sole discretion, for successive periods of up to five (5) Business Days each and for an aggregate period of not more than twenty (20) Business Days (less any number of Business Days that the Offer is commenced after May 3, 2010) beyond the last scheduled Expiration Date of the Offer (and in no case beyond the Outside Date) otherwise permitted hereunder, if all of the conditions to the Offer have been satisfied (provided that, solely for purposes of determining whether the Minimum Condition has been satisfied in determining whether the Offer may be extended except under the third sentence of this Section 2.1(e), shares of Common Stock subject to a Support Agreement shall be deemed to have been tendered into the Offer) and such extension is necessary for the conditions to the Available Financing to be fulfilled; and (ii) Acquisition Sub shall extend the Offer, if requested to do so by written notice delivered by the Company to Acquisition Sub no later than one (1) Business Day prior to the then scheduled Expiration Date of the Offer, for successive periods of up to five (5) Business days each (or such longer period as the Company and Acquisition Sub shall mutually agree) beyond the last scheduled Expiration Date of the Offer, but in no case beyond August 11, 2010, if all of the conditions to the Offer have been satisfied (provided that, solely for purposes of determining whether the Minimum Condition has been satisfied in determining whether the Offer may be extended under the third sentence of this Section 2.1(e), shares of Common Stock subject to a Support Agreement shall be deemed to have been tendered into the Offer) and such extension is necessary for the conditions to the Available Financing to be fulfilled.
(f) If necessary to obtain sufficient shares of Common Stock to reach the Short Form Threshold and the Top-Up Option is otherwise provided hereinlegally unavailable or insufficient to permit the Company to reach the Short Form Threshold immediately after the Acceptance Time, Acquisition Sub may, in its sole discretion, provide for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Subject to the terms and conditions of this Agreement and the Offer, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) immediately accept for payment, and promptly pay for, all shares of Common Stock that are validly tendered pursuant to the Offer during such “subsequent offering period.” The Offer Documents shall provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 2.1(f).
(Dg) Merger Subsidiary Acquisition Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Date without the prior written consent of the Company, except in the event that if this Agreement is terminated pursuant to Section 11.01Article VIII. Notwithstanding the foregoingIf this Agreement is terminated pursuant to Article VIII, (x) Merger Subsidiary Acquisition Sub shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Acquisition Sub to) extend promptly terminate the Offer if at and shall not acquire the scheduled shares of Common Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or extended expiration this Agreement is terminated prior to the purchase of shares of Common Stock in the Offer, Acquisition Sub shall promptly return, and shall cause any depositary acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Common Stock that have not then been purchased in the Offer to the registered holders thereof.
(h) As soon as practicable on the date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Merger Subsidiary shallParent and Acquisition Sub shall file with the SEC, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of 14d-3 under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentexhibits thereto, the “Acceptance DateSchedule TO”).
(c) As promptly . The Schedule TO shall include, as practicable after exhibits, the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, Offer to Purchase and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting (the terms Schedule TO, Offer to Purchase and conditions set forth in this Agreement (collectivelyletter of transmittal, together with any amendments or and supplements thereto, being referred to herein as the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the . The Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act and provisions of applicable federal securities laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date filed with the SEC and on the date first published, sent or given to the Company’s stockholders of and on the CompanyExpiration Date, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that no representation is made by the Parent and Merger subsidiary shall have no obligation or Acquisition Sub with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)writing for inclusion therein. Each Parent and Acquisition Sub agree to cause the Offer Documents to be disseminated to holders of Parentshares of Common Stock, Merger Subsidiary as and to the extent required by all applicable Laws, including the Exchange Act. Parent and Acquisition Sub, on the one hand, and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shallrespect or as otherwise required by applicable Law, and shall cause its Affiliates to, use their respective reasonable best efforts Parent and Acquisition Sub agree to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Common Stock, in each case as and to the extent required by all applicable U.S. federal securities lawsLaws, including the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Merger Subsidiary Parent and Acquisition Sub shall give reasonable and good faith due consideration to any comments made the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Subsidiary Acquisition Sub shall provide the Company and its counsel promptly with copies of any written or comments, and shall inform them of any oral comments comments, that Parent, Merger Subsidiary Acquisition Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any proposed written or oral responses and Parent and Acquisition Sub shall give due consideration to the provisions hereofreasonable additions, promptly respond deletions or changes suggested thereto by the Company and its counsel and to such commentsparticipate in any substantive telephonic communications with the staff of the SEC related thereto.
Appears in 1 contract
The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and nothing shall have occurred that that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex II hereto (the "Offer Conditions") (other than the conditions set forth in clause (i) and subclause (E) of clause (ii)), as promptly as practicable after the date hereof, but in no event later than three 10 Business Days following the public announcement of the execution date of this Agreement, Merger Subsidiary shall, and Parent shall amend cause it to, commence (within the meaning of Rule 14d-2 under the ▇▇▇▇ ▇▇▇) the Offer , to (i) increase purchase any and all outstanding shares of Company Common Stock, including the associated preferred stock purchase price to $6.50 per Share rights (the “Offer Price”"Company Rights") issued pursuant to the Amended and Restated Rights Agreement dated as of May 9, 2007 between the Company and Computershare Investor Services, LLC, as rights agent (the "Company Rights Agreement"), net to for so long as such Company Rights are outstanding (each such share of Company Common Stock, together with its associated Company Right, a "Share", and collectively, the seller in cash, (ii"Shares") provide that the conditions at a price per share equal to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this AgreementPrice. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of Offer Conditions. The date on which Merger Subsidiary commences the Offer prior within the meaning of Rule 14d-2 under the 1934 Act is referred to as the expiration date of the "Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable Commencement Date".
(the “Minimum Condition”b) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of set forth in this Agreement, including Agreement and to the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), Merger Subsidiary shall, and Parent shall cause it to, promptly after the later expiration of the Offer, accept for payment all Shares validly tendered and not withdrawn pursuant to the Offer (x) the earliest date as time at which Shares are first accepted for payment under the Offer, the "Acceptance Time"). The obligation of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver by Parent or Merger Subsidiary, of each of the Offer ConditionsConditions (and shall not be subject to any other conditions). Promptly after the Acceptance Time, Merger Subsidiary shall pay the Offer Price for such Shares.
(bc) Parent and Merger Subsidiary expressly reserves reserve the right to waive any of the Offer Conditions and to make any other changes change in the terms of or conditions to the Offer, including raising the Offer Price; provided that that, without the prior written consent of the Company Company, neither Parent nor Merger Subsidiary shall:
(which consent may be granted i) waive or withheld by the Company in its sole discretion) (A) change the Minimum Condition may not be waived, (Bas defined in Annex I);
(ii) no decrease the Offer Price;
(iii) change may be made that changes the form of consideration to be paid, decreases paid in the price per Share or Offer;
(iv) decrease the number of Shares shares of Company Common Stock sought to be purchased by Merger Subsidiary in the Offer, amends ;
(v) extend or adds to otherwise change the Offer Conditions or amends any other term expiration date of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein; or
(vi) otherwise amend, and (D) Merger Subsidiary shall not terminate modify or supplement any of the Offer prior Conditions or terms of the Offer in a manner that adversely affects, or would reasonably be expected to any scheduled expiration adversely affect, the holders of Shares.
(d) Unless extended as provided in this Agreement, the Offer shall expire on the date except that is 20 Business Days (calculated as set forth in Rule 14d-1(g)(3) under the event that this Agreement is terminated pursuant to Section 11.01▇▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, (xi) Merger Subsidiary shall (or at the request of the Companyshall, and Parent shall cause Merger Subsidiary it to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the staff thereof or Nasdaq Global Market applicable to the Offer; provided that in no event shall Offer or for any period otherwise required by Applicable Law and (ii) if, on the initial expiration date or any subsequent date as of which the Offer is scheduled to expire, any Offer Condition is not satisfied and has not been waived, then Merger Subsidiary be required to shall, and Parent shall cause it to, extend the Offer beyond for one or more periods ending no later than the End Date unless Parent to permit such Offer Condition to be satisfied (provided, however, that, if all of the Offer Conditions other than the Minimum Tender Condition and those that by their nature are to be satisfied at the expiration of the Offer have been satisfied or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)waived, in which case Merger Subsidiary shall be required have the right, but not the obligation, to extend terminate the Offer beyond 60 days after the End Datedate on which all of the Offer Conditions other than the Minimum Tender Condition and those that by their nature are to be satisfied at the expiration of the Offer have been satisfied or, to the extent permissible, have been waived by Merger Subsidiary). Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“"Subsequent Offering Period”") in accordance with Rule 14d-11 of the 1934 Act. Subject to Act if, immediately following the foregoingAcceptance Time, including the requirements of Rule 14d-11Parent, Merger Subsidiary and upon the terms their respective Subsidiaries and subject to the conditions Affiliates beneficially own less than 90% of the Offer, Shares outstanding at that time (which Shares beneficially owned shall include Shares tendered in the Offer and not withdrawn). Merger Subsidiary shall, and Parent shall cause it to, immediately accept for payment and promptly pay for, as promptly as practicable after the expiration of the Offer, for all Shares (1) as they are validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the during such Subsequent Offering Period and in any event in compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the 1934 Act. The Offer may be terminated prior to its expiration date (the as such expiration date on which Shares are first accepted for paymentmay be extended and re-extended in accordance with this Section 2.01(d)), the “Acceptance Date”)but only if this Agreement is validly terminated in accordance with Article 11.
(ce) As promptly soon as practicable after on the date hereofOffer Commencement Date, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent and Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment 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, which ") that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase, a revised offer to purchase and form of letter of transmittal reflecting transmittal, a form of summary advertisement and any schedule or form required to be filed pursuant to the terms and conditions set forth in this Agreement instructions to Schedule TO (collectively, together with any amendments or supplements thereto, the “"Offer Documents”"), and ; (ii) timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the extent Offer required by applicable U.S. federal securities laws, to be filed pursuant to Chapter 80B of the Minnesota Statutes (the "Minnesota Registration Statement"); and (iii) cause the Offer Documents to be disseminated to holders of SharesShares to the extent required by Applicable Law (including the ▇▇▇▇ ▇▇▇) and, by means of inclusion in the Offer Documents, shall disseminate to the holders of Shares the information set forth in the Minnesota Registration Statement to the extent required by Chapter 80B of the Minnesota Statutes. Each of Parent, The Offer shall be conducted in compliance with the 1934 Act.
(f) Parent and Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them to (i) comply with the SEC to comply in all material respects with applicable requirements of the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, shall (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except that misleading; provided, however, no covenant is made by Parent and or Merger subsidiary shall have no obligation Subsidiary with respect to any information in the Offer Documents supplied by the Company for inclusion in the Offer Documents. Parent and Merger Subsidiary shall cause the information supplied by Parent and its Affiliates specifically for inclusion in the Company's Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or its Representatives supplements thereto, the "Schedule 14D-9") or the information statement containing the information required by Section 14(f) of the 1934 Act and Rule 14(f)-1 promulgated thereunder (together with any amendments or supplements thereto, the "Information Statement"), at the respective times the Schedule 14D-9 or the Information Statement are filed with the SEC not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in writing)order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawsApplicable Law (including the 1934 Act). The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof SEC, and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral comments oral, that Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent and Merger Subsidiary shall respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after or the receipt Offer.
(g) Parent shall cause to be provided to Merger Subsidiary all of such comments, and, subject the funds necessary to purchase any Shares that Merger Subsidiary becomes obligated to purchase pursuant to the provisions hereofOffer (including pursuant to any Subsequent Offering Period), and shall cause Merger Subsidiary to perform, on a timely basis, all of Merger Subsidiary's obligations under this Agreement.
(h) Parent and Merger Subsidiary shall promptly respond file with the Commissioner of Commerce of the State of Minnesota all materials referred to such commentsin Section 80B.04 of the Minnesota Statutes.
Appears in 1 contract
The Offer. (a) Provided The Merger Agreement provides that nothing shall have occurred that would give rise to a right to terminate Merger Subsidiary will commence the Offer pursuant to any of and that, upon the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I terms and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger SubsidiaryOffer, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share will purchase all Shares validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, payment and pay the Offer Price (without interest) for, each Share for any Shares validly tendered and not properly withdrawn pursuant prior to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each expiration of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any is conditioned upon satisfaction of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition and the satisfaction or waiver of the conditions described in Annex A to the Merger Agreement. The Merger Agreement provides that Merger Subsidiary may not be waivedamend or waive the Minimum Condition, (B) no or decrease the Offer Price, change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or decrease the number of Shares sought in the Offer, amends add to or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the change conditions to the Offer shall or make any other change in the terms or conditions of the Offer without the prior written consent of the Company. Notwithstanding the foregoing provisions, if on the scheduled expiration of the Offer (as it may be extended), all conditions to the Offer have not be been satisfied or waived, the Offer may be extended from time to time, unless any applicable waiting period under the HSR Act has not expired or been terminated, in which case the Offer will be extended from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend earlier of the consummation of the Offer for any period required by any ruleor August 28, regulation, interpretation or position 2000. If an insufficient number of Shares are tendered pursuant to this Offer prior to the Expiration Date and the Merger Agreement is terminated as a consequence of the U.S. Securities and Exchange Commission (failure to satisfy the “SEC”) or Minimum Condition, the Nasdaq Global Market applicable Company has agreed to the Offer; provided that in no event shall pay Parent a termination fee of $1,000,000. STOCK OPTION AGREEMENT. The Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)provides that, in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offerif following a Subsequent Offering Period, if any, Merger Subsidiary shall, if requested by the Company, or may, has acquired Shares purchased in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which such Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later represent less than three Business Days following the public announcement 90% of the execution of this AgreementShares outstanding on a fully diluted basis, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees will enter into a stock option agreement, on customary terms, pursuant to which the Company will grant to Merger Subsidiary an option to purchase that they shall cause number of Shares equal to the Schedule TO and the other Offer Documents filed by any number of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer DocumentsShares that, when filed with the SEC and on the date first published, sent or given added to the stockholders number of Shares owned by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and its affiliates immediately following expiration of the CompanySubsequent Offering Period, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary results in order to make the statements therein, in light Merger Subsidiary's beneficially owning 90% of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given Shares then outstanding on a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsfully diluted basis.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer been terminated pursuant to any of the conditions set forth in Annex ISection 10.1 hereof, as promptly as practicable after the date hereofreasonably practicable, but in no event later than three Business Days five business days following the public announcement of the terms of this Agreement (which public announcement shall occur no later than the first business day following the execution of this Agreement), Merger Subsidiary Purchaser shall, and Parent shall amend cause Purchaser to, commence (within the Offer meaning of Rule 14d-2 under the Exchange Act) a tender offer (as it may be amended from time to time as permitted by this Agreement, the "OFFER") to purchase all of the shares of Company Common Stock issued and outstanding (iincluding the related Rights) increase the purchase at a price to $6.50 of U.S.$73.00 per Share (the “Offer Price”)share, net to the seller in cashcash (such price, or such higher price per share of Company Common Stock as may be paid in the Offer, being referred to herein as the "OFFER PRICE"). The obligation of Purchaser to accept for payment and pay for shares of Company Common Stock (iiincluding the related Rights) provide that the conditions tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject only to the condition that there shall be validly tendered (other than by guaranteed delivery where actual delivery has not occurred) in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares shares of Company Common Stock that, together with the Shares shares of Company Common Stock then owned by Parent and its Affiliatesand/or Purchaser, represents a majority at least two-thirds of the total number shares of Shares Company Common Stock outstanding on a fully-fully diluted basisbasis (after giving effect to the conversion or exercise of all outstanding options, without regard warrants and other rights to acquire, and securities exercisable or convertible into, Company Common Stock, whether any convertible or exchangeable securities are then vested and exercisable not exercised or converted at the time of determination, other than potential dilution attributable to the Rights) (the “Minimum Condition”"MINIMUM CONDITION") and to the satisfaction or waiver by Purchaser as permitted hereunder of the other conditions set forth in Annex I hereto. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") and to no other conditions. Subject the related letter of transmittal, each in form reasonably satisfactory to the Company, containing the terms set forth in this Agreement and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (I. Parent and Purchaser agree that the “Offer Conditions”)to Purchase will state at least in the summary term sheet and in appropriate places in the Offer to Purchase that "Purchaser's obligation to purchase shares of Company Common Stock under the Offer is not conditioned on any financing arrangements or subject to any financing condition." Without limiting the foregoing, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept effective upon acceptance for payment Shares tendered of the Company Common Stock pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its the terms hereof, the holder of such Company Common Stock will sell and accept for payment each Share validly assign to Purchaser all right, title and 10 15 interest in and to all of the shares of Company Common Stock tendered (including, but not limited to, such holder's right to any and not properly withdrawn pursuant to the Offer all dividends and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for paymentdistributions with a record date before, and pay a payment date after, the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, scheduled or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary extended expiration date). Purchaser expressly reserves the right right, subject to compliance with the Exchange Act, to waive any of the conditions to the Offer Conditions and to make any other changes change in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (Ai) the Minimum Condition may not be waived, waived or changed without the prior written consent of the Company and (Bii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or Offer Price, decreases the number of Shares shares of Company Common Stock sought in the Offer, amends adds to or adds modifies any of the conditions to the Offer Conditions or amends set forth in Annex I, makes any other term change in the terms of the Offer that is in any manner adverse to the stockholders holders of the Company Common Stock or (except as provided in the next sentence) changes the expiration date of the Offer, without the prior written consent of the Company. Without the consent of the Company, (C) Purchaser shall have the right to extend the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate of the Offer prior to any scheduled expiration (which shall initially be 20 business days from the commencement date except in of the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoingOffer), (xi) Merger Subsidiary shall (or at the request of the Companyif, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to the Offer shall not be have been satisfied or or, to the extent permitted, waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and , (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided that Offer or any period required by applicable law, (iii) for up to 10 additional business days in increments of not more than two business days each (but in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(iTermination Date), in which case Merger Subsidiary shall be required if, immediately prior to extend the Offer beyond the End Date. Following scheduled or extended expiration date of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly Company Common Stock tendered and not withdrawn pursuant to the Offer constitutes more than 80% and less than 90% of the outstanding Company Common Stock, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer, or (iv) as contemplated in Section 10.1(c)(i); provided, that, in the case of any extension under clause (iii), Parent or Purchaser may not thereafter assert the failure of any of the conditions provided for in clauses (a)(iii), (a)(iv), (a)(v) and (2b)(ii) validly tendered in the Subsequent Offering Period of Annex I or, for purposes of clause (the date on which Shares are first accepted for payment, the “Acceptance Date”).
b)(iii) or (c) As promptly as practicable of Annex I, a Company Material Adverse Effect or a material breach of a representation or warranty, in each such case, by reason of an event other than a breach of a covenant by the Company occurring after the initial extension under clause (iii). In addition, if, at the scheduled or extended expiration date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementOffer, Merger Subsidiary shall, the Minimum Condition has been satisfied but Company Common Stock tendered and shall cause its Affiliates to, (i) file with the SEC an amendment not withdrawn pursuant to the Schedule TOOffer constitutes less than 90% of the outstanding Company Common Stock, which shall include a revised offer to purchase and form of letter of transmittal reflecting without the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders consent of the Company, Purchaser shall not contain any untrue statement of have the right to provide for a material fact or omit "subsequent offering period" (as contemplated by Rule 14d-11 under the Exchange Act) for up to state any material fact required to be stated therein or necessary in order to make the statements therein, in light 20 business days after Purchaser's acceptance for payment of the circumstances under which they were made, shares of Company Common Stock then tendered and not misleading (except that Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and withdrawn pursuant to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsOffer.
Appears in 1 contract
Sources: Merger Agreement (Southdown Inc)
The Offer. Provided that (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VI hereof, (b) the Share Tender Agreements shall have occurred been executed simultaneously with this Agreement and (c) the Board of Directors has taken action to eliminate any requirement that would give rise to the Salary Continuation Agreements Trust be fully funded for all current benefit obligations upon a right to terminate the Offer pursuant to any change of control of the conditions Company, and so long as none of the events set forth in Annex IA hereto (the "Tender Offer Conditions") shall have occurred and are continuing, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following the fifth business day after the public announcement of the execution of this Agreement, Merger Subsidiary Sub shall amend commence the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this AgreementOffer. The Offer obligations of Sub to accept for payment and promptly to pay for any shares of Common Stock tendered shall be subject only to the Tender Offer Conditions, any of which may be waived by Parent and Sub; PROVIDED, HOWEVER, that, without the consent of the Company, Sub shall not waive the condition that there shall be have been validly tendered and not validly withdrawn prior to the expiration of the Offer a number of shares of Common Stock which represent at least 70% of the total voting power of all shares of capital stock of the Company outstanding on a fully diluted basis (the "Minimum Condition"). The Tender Offer Conditions are for the sole benefit of Parent and Sub and may be asserted by Parent and Sub regardless of the circumstances giving rise to any such Tender Offer Condition and, subject to the preceding sentence, may be waived by Parent and Sub in accordance with whole or in part. Sub expressly reserves the right to modify the terms of the Offer, including, without limitation, except as provided below, to extend the Offer prior to beyond any scheduled expiration date; PROVIDED, HOWEVER, without the expiration date consent of the Offer and Company, Sub shall not withdrawn, a (i) reduce the number of Shares thatshares of Common Stock to be purchased in the Offer, together with (ii) reduce the Shares then owned by Parent and its AffiliatesOffer Price, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard (iii) modify or add to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I A or (the “Offer Conditions”), promptly after the later of (xiv) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request Offer may not be extended beyond any scheduled expiration date unless any of the CompanyTender Offer Conditions shall not have been satisfied; PROVIDED, Parent shall cause Merger Subsidiary toHOWEVER, (i) extend even if the Tender Offer Conditions have not been satisfied, the Offer if at may not be extended beyond the scheduled or extended expiration three month anniversary of the date of commencement of the Offer any and (ii) if the Tender Offer Conditions have been satisfied, then the Offer may be extended for an additional five business days so long as at the time of the such extension, all conditions to the Offer shall not be satisfied or waived, from time Sub's obligations to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position purchase shares of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn Common Stock pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)irrevocably waived.
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
Sources: Merger Agreement (Geon Co)
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate The Merger Agreement contemplates the Offer pursuant to any commencement of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase purchase all of the purchase price to $6.50 per issued and outstanding Class A Shares and all of the issued and outstanding Class B Shares for the Per Share (the “Offer Price”)Amount, net to the seller in cash, (ii) provide that the without interest and prescribes conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date consummation of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation Merger Agreement provides that, without the prior written consent of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for paymentBeringer, and pay Purchaser may not: - Decrease or change the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each form of the Offer Conditions.
(b) Merger Subsidiary expressly reserves Per Share Amount; - Decrease the right number of Shares sought to waive any of the Offer Conditions and to make any other changes be purchased in the terms of Offer; - Amend or waive the Minimum Condition; - Impose additional conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends - Amend any other term of the Offer in any manner adverse to the stockholders holders of Shares. The "Minimum Condition" requires that there shall have been validly tendered and not withdrawn prior to the Expiration Date a number of Shares that, together with any Shares that Purchaser has the right to acquire pursuant to the Tender Agreement (excluding Shares subject to the Tender Agreement that have been validly tendered and not withdrawn prior to the Expiration Date) and any Shares then owned by ▇▇▇▇▇▇'▇ or any of its subsidiaries, constitutes at least a majority of the Company, (C) total voting power of the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior outstanding securities of Beringer entitled to any scheduled expiration date except vote in the event that this Agreement election of directors or in a merger (the "Voting Securities"), calculated on a fully diluted basis on the date of purchase ("on a fully diluted basis" having the following meaning: as of any date, the number of Voting Securities outstanding, together with the number of Voting Securities Beringer is terminated then required to issue pursuant to Section 11.01obligations outstanding at that date under employee stock options, warrants, benefit plans or other rights to purchase or acquire Voting Securities, assuming the absence of any vesting requirements or conditions). Notwithstanding If, on the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the Expiration Date all conditions to the Offer shall not be have been satisfied or waived, Purchaser may (and at ▇▇▇▇▇▇▇▇'▇ request will) extend the Expiration Date from time to time until for such additional periods not to exceed 30 calendar days in order to permit such conditions are satisfied (other than conditions which by their nature are to be satisfied on satisfied; provided, however, that the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend Expiration Date may not be extended beyond January 31, 2001. Notwithstanding that all the conditions to the Offer for any period required by any rulehave been satisfied, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or ▇▇▇▇▇▇'▇ may, in its sole discretion, extend the Expiration Date for up to 10 business days. In the event that the Minimum Condition has been satisfied and all other conditions to the Offer have been satisfied or waived but less than 100% of the Class A Shares and 90% of the Class B Shares, calculated on a fully diluted basis, have been validly tendered and not withdrawn on the Expiration Date, Purchaser will accept and purchase all of the Shares tendered in the initial offer period and may notify stockholders of Purchaser's intent to provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 ActOffer Period which shall not exceed 10 business days. Subject to the foregoingPurchaser will, including the requirements of Rule 14d-11, and upon on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, purchase all Shares (1) validly tendered and not withdrawn pursuant to the Offer as soon as permissible after the Expiration Date of the Offer. ▇▇▇▇▇▇'▇ will cause Purchaser to have sufficient funds make all payments required to be made pursuant to the Offer and (2) validly tendered the Merger and ▇▇▇▇▇▇'▇ shall cause Purchaser to comply with all of its obligations under the Merger Agreement. The Company represented and warranted to ▇▇▇▇▇▇'▇ in the Subsequent Offering Period Merger Agreement that: - The Beringer Board, at a meeting duly called and held, unanimously (with one Beringer Board member absent): - Approved and adopted the Merger Agreement and approved the Tender Agreement and the transactions contemplated thereby, including the Offer and the Merger (such adoption and approval being sufficient to render Section 203 of the Delaware General Corporation Law (the date on which Shares "DGCL") inapplicable to the Merger Agreement and the Tender Agreement and the transactions contemplated thereby, including the Offer and the Merger, assuming that ▇▇▇▇▇▇'▇ and Purchaser are first accepted for paymentnot "interested stockholders," as such term is defined in Section 203 of the DGCL, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of immediately prior to the execution of this the Merger Agreement and the Tender Agreement by ▇▇▇▇▇▇'▇ and Purchaser); - Recommended that the stockholders of Beringer accept the Offer, tender their Shares pursuant to the Offer and adopt the Merger Agreement and approve the transactions contemplated thereby, including the Merger; and - Determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are fair to and in the best interests of the stockholders of Beringer, and - ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇▇'▇ financial advisor, rendered its opinion to the Beringer Board to the effect that the consideration to be received by the holders of Shares pursuant to the Offer and the Merger is fair to such holders from a financial point of view. The Merger Agreement provides that, if requested by ▇▇▇▇▇▇'▇, following the purchase by Purchaser of any Shares pursuant to the Offer and thereafter the purchase of Shares pursuant to the Tender Agreement, Merger Subsidiary shalland from time to time thereafter as Shares are acquired by Purchaser, ▇▇▇▇▇▇'▇ is entitled to designate such number of directors, rounded up to the next whole number, on the Beringer Board as is equal to the product of the total number of directors on the Beringer Board (determined after giving effect to the directors so appointed or elected pursuant to such provision and including current directors serving as officers of Beringer) multiplied by the percentage that the aggregate number of Shares beneficially owned by ▇▇▇▇▇▇'▇ or its affiliates (including such Shares as are accepted for payment pursuant to the Offer, but excluding Shares held by Beringer) bears to the total number of Shares then outstanding. At such times, if requested by ▇▇▇▇▇▇'▇, Beringer will also cause each committee of the Beringer Board to include persons designated by ▇▇▇▇▇▇'▇ constituting the same percentage of each such committee as designees of ▇▇▇▇▇▇'▇ are of the Beringer Board. The Company will, upon request by ▇▇▇▇▇▇'▇, promptly increase the size of the Beringer Board or use its best efforts to secure the resignations of such number of directors as is necessary to enable designees of ▇▇▇▇▇▇'▇ to be elected to the Beringer Board and shall cause its Affiliates to, (i) file with the SEC an amendment designees of ▇▇▇▇▇▇'▇ to be elected to the Schedule TOBeringer Board. In the event that designees of ▇▇▇▇▇▇'▇ are appointed or elected to the Beringer Board, which until the Effective Time, the Beringer Board shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and at least three directors who were directors on the date first publishedof the Merger Agreement and who are neither officers of Beringer nor designees, sent stockholders, affiliates or given associates of ▇▇▇▇▇▇'▇ (the "Independent Directors"). If no Independent Directors remain, the other directors shall designate three persons to fill the vacancies, none of whom shall be either an officer of Beringer or a designee, stockholder, affiliate or associate of ▇▇▇▇▇▇'▇, and such persons shall be deemed to be Independent Directors for purposes of the Merger Agreement. Prior to the stockholders Effective Time, the affirmative vote of a majority of the CompanyIndependent Directors is required to: - amend or terminate the Merger Agreement on behalf of Beringer, shall not contain - exercise or waive any untrue statement of a material fact ▇▇▇▇▇▇▇▇'▇ rights or omit to state remedies under the Merger Agreement, - extend the time for performance of ▇▇▇▇▇▇'▇ obligations under the Merger Agreement, or - take any material fact other action by Beringer in connection with the Merger Agreement required to be stated therein or necessary in order taken by the Beringer Board. Pursuant to make the statements thereinMerger Agreement, in light until the Effective Time, the affirmative vote of a majority of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect Independent Directors is sufficient to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly cause Beringer to correct any information provided by it or enforce any of its Affiliates for use in rights and remedies under the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsAgreement.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as As promptly as practicable after the date hereof, but in no event later more than three 10 Business Days following after the public announcement of the execution date of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer.
(b) The obligation of Merger Sub to accept for payment and pay for any shares of Company Capital Stock validly tendered and not validly withdrawn pursuant to the Offer shall be subject to: (i) there being validly tendered in the Offer and not validly withdrawn prior to any then scheduled Expiration Time that number of shares of Company Common Stock which, together with the shares beneficially owned by Parent or Merger Sub (if any), represents at least a majority of the Company Common Stock then outstanding (assuming conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof but excluding shares of Company Common Stock issuable upon conversion of the Company Preferred Stock) (the “Minimum Condition”); and (ii) the satisfaction, or waiver by Parent or Merger Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition, the “Offer Conditions”). Subject to the prior satisfaction of the Minimum Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment each Share and pay for all shares of Company Capital Stock validly tendered and not properly validly withdrawn pursuant to the Offer and as promptly following as practicable after the acceptance of Shares for payment pursuant to the Offer pay the Expiration Time. The Offer Price (without interest) for payable in respect of each Share share of Company Capital Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid net to the satisfactionseller in cash, or waiver without interest, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by Parent or Merger Subsidiary, means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions.
(b) . Parent and Merger Subsidiary Sub expressly reserves reserve the right (in their sole discretion) to waive waive, in whole or in part, any of Offer Condition, to increase the Offer Conditions and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless otherwise provided by this Agreement or conditions as previously approved in writing by the Company, Merger Sub shall not (i) reduce the number of shares of Company Capital Stock subject to the Offer; provided that without , (ii) reduce the prior consent of the Company Offer Price, (which consent may be granted iii) change, modify or withheld by the Company in its sole discretion) (A) waive the Minimum Condition may not be waivedCondition, (Biv) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds add to the conditions set forth in Annex I or modify or change any Offer Conditions or amends any other term of the Offer Condition in a manner adverse in any manner adverse material respect to the any stockholders of the Company, (Cv) the expiration date shall not be extended except as otherwise provided hereinin this Section 1.01, and extend or otherwise change the expiration date of the Offer, (Dvi) Merger Subsidiary shall not terminate change the form of consideration payable in the Offer prior or (vii) otherwise amend, modify or supplement any of the terms of the Offer in a manner adverse in any material respect to any scheduled expiration stockholders of the Company.
(d) The Offer shall expire at midnight (New York City time) on the date except that is 20 Business Days following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event that the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”).
(e) Notwithstanding anything in this Agreement is terminated pursuant to the contrary, and without limiting Parent’s or Merger Sub’s obligations under this Section 11.01. Notwithstanding the foregoing1.01(e), Merger Sub (xi) Merger Subsidiary shall (or at the request may, in its sole discretion, without consent of the Company, Parent shall cause Merger Subsidiary to) extend the Offer on one or more occasions for any period, if at the on any then-scheduled or extended expiration date Expiration Time any of the Offer any of the conditions to the Offer Conditions shall not be satisfied or or, in Merger Sub’s sole discretion, waived, from time to time until such time as such condition or conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; waived and (yii) Merger Subsidiary shall extend the Offer for any period required by applicable Law, any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market staff thereof applicable to the Offer, and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under any applicable antitrust, competition or similar Law shall have expired or been terminated; provided provided, however, that in no event shall Merger Subsidiary Sub be required to extend the Offer (A) beyond March 29, 2013 (the End Date unless “Outside Date”) or (B) at any time that Parent or Merger Subsidiary Sub is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period Article VIII.
(“Subsequent Offering Period”f) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the Offerthis Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Merger Sub to, accept for payment and pay for, as promptly as practicable after the expiration for (subject to any withholding of the Offer, tax pursuant to Section 3.05) all Shares (1) shares of Company Capital Stock validly tendered and not validly withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as soon as practicable after the date hereofExpiration Time (as it may be extended and re-extended in accordance with this Section 1.01). Acceptance for payment of shares of Company Capital Stock pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing”. Merger Sub expressly reserves the right to, but in no event later than three Business Days its sole discretion, following the public announcement Offer Closing, extend the Offer for a “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents may, in Merger Sub’s sole discretion, provide for such a reservation of right. Nothing contained in this Section 1.01 shall affect any termination rights in Article VIII.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the execution Company except in the event that this Agreement is terminated pursuant to Article VIII. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated pursuant to Article VIII, prior to the acceptance for payment of this Agreementthe Company Capital Stock tendered in the Offer, Merger Subsidiary shallSub shall promptly return, and shall cause its Affiliates toany depository acting on behalf of Merger Sub to return, all tendered Company Capital Stock to the registered holders thereof.
(ih) As soon as practicable on the date of the commencement of the Offer, Parent and Merger Sub shall file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto, the “Offer Documents”), . The Company shall promptly furnish to Parent and (ii) to Merger Sub all information concerning the extent Company required by applicable U.S. federal securities laws, the Exchange Act to be set forth in the Offer Documents. Parent and Merger Sub agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given disseminated to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit in each case as and to state any material fact the extent required to be stated therein or necessary in order to make by the statements therein, in light of the circumstances under which they were made, not misleading (except that Exchange Act. Parent and Merger subsidiary shall have no obligation with respect to any information in Sub, on the Offer Documents supplied by the Company or its Representatives in writing). Each of Parentone hand, Merger Subsidiary and the Company agrees Company, on the other hand, agree to promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub further agree to take all steps necessary to cause the Schedule TO Offer Documents, as so corrected (if applicable), to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the 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 shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the such Offer Documents each time before or response.
(i) Parent shall provide or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documentsshares of Company Capital Stock that Merger Sub becomes obligated to accept for payment, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parentpay for, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect pursuant to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsOffer.
Appears in 1 contract
Sources: Merger Agreement (Computer Software Innovations, Inc.)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VII and none of the events or conditions set forth in Annex A (other than clause (e) of Annex A) shall have occurred that would give rise to a right to terminate the Offer pursuant to any of and be existing and shall not have been waived in writing by Parent or Merger Sub (the conditions set forth in Annex IA, the "Tender Offer Conditions"), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with its rules and regulations, the "Exchange Act")) the Offer, as promptly as reasonably practicable after the date hereof, but of this Agreement and in no any event later than three within 15 Business Days following after the public announcement of the execution date of this Agreement. Without the prior written consent of the Company, Merger Subsidiary Sub shall amend the Offer to not (i) increase decrease the purchase price to $6.50 per Share (Offer Price or change the “Offer Price”), net to form of consideration payable in the seller in cashOffer, (ii) provide that decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (iii) impose conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that addition to the expiration date of the Tender Offer shall be midnight (New York City time) on the date Conditions or amend any condition in a manner that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under adverse to the Exchange Act) following the filing holders of such amendmentCompany Common Stock, and (iv) waive or amend the Minimum Condition (v) extend the Expiration Date (as defined below) except as required or permitted by this Section 1.1, or (vi) make such any other amendments as are necessary or appropriate change to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior in a manner that is materially adverse to the expiration date holders of Company Common Stock; provided that Merger Sub expressly reserves the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard right to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay increase the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to waive any of the OfferTender Offer Conditions other than the Minimum Condition. The obligation Company agrees that no shares of Merger Subsidiary (and Company Common Stock held by the Company or any of Parent to cause Merger Subsidiary) to accept for payment, and pay its Subsidiaries will be tendered in the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each except for Company Common Stock held in respect of the Offer ConditionsCompany's Supplemental Retirement Savings Plan.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date Sub shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of file with the U.S. Securities and Exchange Commission (the “"SEC”") or the Nasdaq Global Market applicable a Tender Offer Statement on Schedule TO with respect to the Offer; provided Offer on the date that in no event shall Merger Subsidiary be required to extend the Offer beyond 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 End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)"Offer Documents") and, in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”Company's compliance with Section 1.2(c).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause Stockholders in accordance with the Schedule TO and applicable requirements of the other Exchange Act. The Offer Documents filed by any of them with the SEC to shall comply in all material respects with the 1934 Exchange Act and and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date first filed with the SEC and on the date first published, sent or given to the stockholders of Company Stockholders and on the CompanyAcceptance Date, 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 (misleading, except that no covenant, agreement, representation or warranty is made by Parent and or Merger subsidiary shall have no obligation Sub with respect to any information in the Offer Documents supplied by the Company for inclusion or its Representatives incorporation by reference in writing)the Offer Documents. Each of ParentThe Company, Parent and Merger Subsidiary and the Company agrees Sub each agree promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and the Company Stockholders to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before sufficiently in advance of any such document is being filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral comments oral, that Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptlypromptly after receipt of those comments or other communications and (ii) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (to which reasonable and good-faith consideration shall be given), but including by participating with Parent and Merger Sub or their counsel in no event later than twenty-four hoursany discussions or meetings with the SEC.
(c) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) Business Day after the receipt date that the Offer is commenced (the "Expiration Date"), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, this Section 1.1(c) or as may be required by applicable Law, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, as so extended may expire. If any of the conditions of the Offer are not satisfied or waived on any Expiration Date, Merger Sub shall extend the Offer from time to time for one or more periods of time up to 10 Business Days (or such longer period as the Company may agree in writing) per extension until such conditions of the Offer have been satisfied or waived; provided that Merger Sub shall not be required to extend the Offer after 150 days following the date that the Offer is commenced. Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or its staff applicable to the Offer. Merger Sub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and it is permitted under applicable Law to accept for payment and pay for tendered shares. 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 Offer and accepted for payment, together with any shares of Company Common Stock then owned by Parent, is less than 90% of the outstanding shares of Company Common Stock, Merger Sub may, without the consent of the Company, commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three (3) to twenty (20) Business Days to acquire outstanding shares of Company Common Stock.
(d) Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause it to, as soon as practicable after the Expiration Date, accept for payment and pay for all shares of Company Common Stock that have been validly tendered and not withdrawn pursuant to the Offer. If Merger Sub shall commence a subsequent offering period in connection with the Offer, Merger Sub shall accept for payment and pay for all additional shares of Company Common Stock validly tendered during such subsequent offering period.
(e) Merger Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such commentspayment under the Internal Revenue Code of 1986, andas amended (the "Code"), subject to the provisions hereofor under any provision of state, promptly respond to such commentslocal or foreign tax Law.
Appears in 1 contract
The Offer. Subject to Section 4:
(a) Provided that nothing this Agreement shall not have occurred been terminated in accordance with Section 4 hereof and provided that would give rise to a right to terminate none of the events set forth in the Offer Conditions has occurred or is continuing and in the case of any such occurrence or continuation, Acquisition Sub has not otherwise waived the occurrence or continuation of such event(s), promptly after the date of this Agreement and in any event on or before the date that is five (5) business days after the date hereof, Acquisition Sub shall commence the Offer within the meaning of the applicable rules and regulations of the Taiwan Financial Supervisory Commission (the “FSC”). The obligations of Acquisition Sub to commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to any the Offer (and not validly withdrawn) are subject to the satisfaction or waiver of each of the conditions set forth in Annex ISchedule C (such conditions, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer PriceConditions”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the . The initial expiration date of the Offer shall be midnight the 32nd day (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Actwhich 32 day period shall also encompass 20 business days) following the filing commencement of the Offer (such amendmentdate, the “Initial Expiration Date”, and (iv) make such other amendments as are necessary or appropriate date and any subsequent date to conform which the expiration of the Offer is extended pursuant to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered and in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver each an “Expiration Date”). In order for any stockholder of the conditions set forth in Annex I Company to validly tender all or a portion of such stockholder’s Company Common Stock into the Offer such stockholder shall, concurrent with such tender, provide any member of the executive management of the Company (the “Offer ConditionsCompany Management”), promptly after the later of ) with a proxy (“Tendered Proxies”) to (x) allow such tendered shares of Company Common Stock to be counted as present at the earliest date as of Company Stockholder Meeting or any annual or extraordinary general meeting in which Merger Subsidiary the Company Stockholder Approval is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer sought, and (y) vote, or grant a consent or approval in respect of, such tendered shares of Company Common Stock, in favor of granting the earliest date as of which each of Company Stockholder Approval and, if applicable, against any Takeover Proposal. Acquisition Sub shall not withdraw or rescind the Offer Conditions has been satisfied, unless such withdrawal or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (rescission is permitted under this Agreement and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms Securities and accept for payment each Share validly tendered Exchange Law of Taiwan and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditionsregulations promulgated thereunder.
(b) Merger Subsidiary Subject to applicable Law, Acquisition Sub expressly reserves the right to waive any Offer Condition or amend or modify the terms of the Offer Conditions by concurrent written notice to the Company and to make the Stockholders, provided that (x) no such proposed amendment or modification shall be effective for any other changes in purpose if it could reasonably be expected to impose additional obligations or liability on the terms of or conditions Stockholders with respect to the Offer; provided Offer or the consummation of the Offer other than as contemplated hereby,(y) any proposed amendment or modification that would require the amendment of any term of this agreement shall not be effective without such amendment having been made pursuant to Section 6, and (z) without the prior written consent of the Company and the Stockholders, Acquisition Sub shall not (which consent may be granted or withheld by i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the consideration payable in its sole discretionthe Offer, (iii) (A) waive the Minimum Condition may not be waived, (Bas defined in Schedule C) no or (iv) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends or adds . Subject to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the CompanySection 4, (Ci) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall Acquisition Sub may extend the Offer for any a period of up to 30 days only if and to the extent such extension is approved by the FSC, and (ii) Acquisition Sub may make such changes to the Offer as are required by any rule, regulation, interpretation or position in order to comply with Regulation 14E of the U.S. Securities Exchange Act of 1934, as amended. The parties acknowledge and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable agree that all Subject Shares tendered to the Offer; provided that Acquisition Sub in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in terms hereof shall be counted for purposes of determining whether or not the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Minimum Condition has been satisfied.
(c) As promptly as practicable after On or prior to the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, and Acquisition Sub shall cause its Affiliates to, (i) file with the SEC an amendment FSC and submit to the Schedule TO, which shall include Market Observation Post System of Taiwan (“MOPS”) a revised offer Tender Offer Prospectus in due and proper form that complies in all material respects with the applicable form relating to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Offer (collectively, together with any supplements, amendments or supplements and exhibits thereto, and all deliveries, mailings and notices required by applicable Law, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they Acquisition Sub shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to promptly correct any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and Acquisition Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected amended or supplemented to be timely filed with the FSC and published in the MOPS and to be timely disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities lawsFSC, TSE and MOPS rules and regulations. The Company Acquisition Sub shall give the Company, the Stockholders and its their respective counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is and all amendments and supplements to the Offer Documents prior to their being filed with the SEC after FSC and published in the date hereof MOPS and (B) on any correspondence disseminated to holders of Shares. Acquisition Sub further hereby agrees to promptly provide the Company, the Stockholders and their respective counsel in writing with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and Acquisition Sub or its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC FSC or the MOPS with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, andand shall promptly consult with and provide the Company, subject the Stockholders and their respective counsel a reasonable opportunity to review and comment on the response of Acquisition Sub to such comments prior to responding.
(d) Subject solely to the provisions satisfaction or waiver by Acquisition Sub of the Offer Conditions in accordance with Section 2(b) hereof, Acquisition Sub shall promptly respond and in event within seven (7) business days after the then scheduled Expiration Date if at that time all of the Offer Conditions are satisfied (or waived by Acquisition Sub), accept for payment and pay for the shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer for the Offer Price. If Acquisition Sub is ordered by the FSC to amend the terms of the Offer according to applicable Law, Acquisition Sub shall promptly do so, and shall re-submit the Offer Documents and make a public announcement regarding such commentsamendment, and the Expiration Date shall be re-started to count from the date Acquisition Sub re-submits the Offer Documents and makes such a public announcement.
(e) If, between the date of this Agreement and the first time at which Acquisition Sub accepts for payment and makes payment for any shares of Company Common Stock tendered pursuant to the Offer (the “Acceptance Time”), the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any share issuance, share split, division or subdivision of shares, share dividend, reverse share split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price shall be adjusted accordingly.
Appears in 1 contract
Sources: Tender Agreement (Exar Corp)
The Offer. (a) Provided Subject to the terms and conditions herein, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the Exchange Act)) a cash tender offer to purchase all of the issued and outstanding shares of the Company Common Stock for $19.61 U.S. Dollars per share of Company Common Stock (such amount, or any greater amount per share of Company Common Stock paid pursuant to the offer, the Per Share Amount and such offer, as it may be amended from time to time pursuant to the terms hereof, the Offer) no later than ten (10) Business Days after the date hereof. Subject to satisfaction or, if permitted hereunder, waiver of the Tender Offer Conditions (as defined below) and the terms and conditions hereof, Parent shall cause Merger Sub to irrevocably accept for purchase, and Merger Sub shall irrevocably accept for purchase, all shares of the Company Common Stock that nothing have been validly tendered and not withdrawn pursuant to the Offer as soon as practicable (and in any event not more than the fourth (4th) Business Day) following the Expiration Date (as defined below). Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company unless and until this Agreement is terminated in accordance with Section 8.1.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, accept for purchase, purchase, and pay for any shares of Company Common Stock tendered pursuant to the Offer (and not validly withdrawn) shall only be subject to the satisfaction or, if permitted hereunder, waiver pursuant to the terms hereof of (i) the condition (the Minimum Condition) that the number of shares of Company Common Stock validly tendered and not withdrawn prior to the Expiration Date (excluding shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have occurred that would give rise to a right to terminate not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), when added to any shares of Company Common Stock already owned by Parent or any of its subsidiaries, if any, shall be at least a majority of the shares of Company Common Stock then outstanding on a fully-diluted basis (assuming the exercise of all options and other rights to purchase shares of Company Common Stock regardless of exercise price, vesting schedule or other terms or conditions thereof, but excluding any Company Stock Options the holders of which have, as of the Acceptance Date, entered into the option cancellation agreements described in Section 3.3(a)) and (ii) the other conditions set forth in Annex I, as promptly as practicable after A hereto (the date hereof, but conditions described in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to clauses (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, and (ii) provide are collectively referred to as the Tender Offer Conditions). The Tender Offer Conditions are for the sole benefit of Parent and Merger Sub, and Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition, which may not be amended or waived), to increase the Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (except as provided in Section 1.1(h)), changes the form of consideration payable in the Offer, imposes conditions to the Offer shall be as set forth in Annex I and that no other conditions shall applyaddition to the Tender Offer Conditions, (iii) provide that decreases the expiration date number of shares of Company Common Stock subject to the Offer, reduces the time period during which the Offer shall be midnight remain open, or modifies, amends or supplements the Offer or the Tender Offer Conditions in any manner adverse to the Company Stockholders.
(c) Upon the terms and subject to the conditions thereof, the Offer shall remain open until at least midnight, New York City time) , on the date that is ten later of (i) the twentieth (20th) Business Days Day (for this purpose calculated determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and commencement (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered determined in accordance with Rule 14d-2 under the terms of the Offer prior to the expiration date Exchange Act) of the Offer and not withdrawn(ii) the second (2nd) Business Day following the Solicitation Period End Date (the Initial Expiration Date), a number unless the Initial Expiration Date has been extended pursuant to, and in accordance with, the provisions of Shares that, together with Section 1.1(d) or as required by Applicable Law or the Shares then owned by Parent and its Affiliates, represents a majority interpretations of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested Securities and exercisable Exchange Commission (the “Minimum Condition”SEC) (the Initial Expiration Date, or such the later time and date on which the Initial Expiration Date has been extended pursuant to, and in accordance with, this Agreement, the Expiration Date).
(d) Notwithstanding the foregoing or anything to the other conditions contrary set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including except the prior satisfaction last sentence of this Section 1.1(d), unless this Agreement shall have been terminated in accordance with Section 8.1, (i) Merger Sub shall extend the Offer for any period required by any Applicable Law, or waiver any rule, regulation, interpretation or position of the conditions set forth SEC or its staff or the NYSE MKT in Annex I any such case that is applicable to the Offer, and (ii) if, on the “Offer Conditions”), promptly after the later of (x) the earliest initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to Sub shall extend (and re-extend) the Offer and its Expiration Date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to ten (y10) Business Days each, or for such longer period as the earliest date as parties may agree, in order to permit the satisfaction of which each all of the Tender Offer Conditions has been satisfiedConditions; provided, however, that if, at any Expiration Date the only Tender Offer Condition that is not satisfied or waived is the Minimum Condition, then Merger Sub shall not be required to extend the Offer for more than two subsequent extension periods after the first such Expiration Date of ten (10) Business Days each, or waived by Parent or for such longer period as the parties may agree. Merger SubsidiarySub may, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) , following the Minimum Condition may not be waivedAcceptance Date, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to extend the Offer Conditions for a “subsequent offering period” (and one or amends more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (as defined below) may, in Merger Sub’s sole discretion, provide for such a right; provided, however, that Merger Sub shall not commence any other term “subsequent offering period” after the Acceptance Date if the Merger can be effected pursuant to Section 251(h) of the DGCL. Notwithstanding the above, in no event shall Merger Sub be required to extend the Offer in any manner adverse to beyond the stockholders Offer Outside Date or so extend the Offer without the consent of the Company, .
(Ce) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in In the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing8.1, (x) Merger Subsidiary Sub shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Sub to) extend promptly (and in any event within one Business Day of such termination), irrevocably and unconditionally terminate the Offer if at and Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Company Common Stock to the scheduled registered holder thereof.
(f) Subject to the terms and conditions of this Agreement and the Offer, Merger Sub (or extended expiration Parent on Merger Sub’s behalf) shall irrevocably accept for purchase and pay for all shares of Company Common Stock validly tendered and not withdrawn as soon as practicable after the Expiration Date (the time and date of the Offer any of the conditions to the Offer shall not be satisfied or waivedacceptance for purchase, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date). If the Per Share Amount (or any portion thereof) is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock not represented by certificates (Book Entry Shares) or waived; and certificates that, immediately prior to the Effective Time, represented outstanding shares of Company Common Stock (ythe Certificates) are registered, the amount of any stock transfer or other similar taxes (whether imposed on the registered holder(s), or such other person, or otherwise) payable on account of such issuance or transfer shall be deducted from the Per Share Amount payable, unless evidence satisfactory to Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position Sub of the U.S. Securities payment of such taxes or exemption therefrom is submitted. If any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and Exchange Commission (upon providing an indemnity reasonably satisfactory to Parent and Merger Sub, Merger Sub will pay the “SEC”) Per Share Amount deliverable in respect of the shares of Company Common Stock that were evidenced by the lost, stolen or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent destroyed Certificate. No interest or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary dividends shall be required to extend paid or accrued on any portion of the Offer beyond Per Share Amount.
(g) As promptly as practicable on the End Date. Following expiration date of commencement of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the Schedule TO) with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an amendment offer to purchase (the Offer to Purchase), form of the related letter of transmittal, summary advertisement and any other ancillary documents pursuant to which the Offer will be made (the Schedule TO, which shall include a revised offer the Offer to purchase Purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectivelysuch other documents, together with any all exhibits, supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, . Merger Sub shall cause the Offer Documents to be disseminated to holders of SharesCompany Stockholders as and to the extent required by applicable federal securities laws. Each of Parent, Parent and Merger Subsidiary and the Company agrees that they Sub shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders requirements of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)federal securities laws. Each of Parent, Merger Subsidiary Sub, and the Company agrees promptly agree to correct promptly any information provided by it or any of its Affiliates them for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, Parent and Merger Sub further agree to use their respective reasonable best efforts to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of SharesCompany Stockholders, in each case in all material respects as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish to Merger Sub and Parent all information concerning the Company that is required 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 1.1(g). Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. In addition, Parent and Merger Subsidiary shall Sub agree to (i) provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and(ii) unless there has been a Change of Recommendation, subject provide a reasonably detailed description of any oral comments Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the provisions hereofOffer Documents promptly after the receipt of such comments, promptly respond and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel a reasonable opportunity to review and comment on any written response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC. Parent and Merger Sub shall use reasonable best efforts to respond promptly to any such SEC comments.
(h) If, between the date of this Agreement and the Acceptance Date, 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 shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, the Per Share Amount applicable to such shares of Company Common Stock shall be adjusted to the extent appropriate; provided, however, that this Section 1.1(h) shall not affect or supersede the provisions of Section 6.3(a).
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iof this Agreement, as promptly as practicable after the date hereof, but in no event later than three Business Days following five business days after the date of the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”)Sub shall, net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary Sub to) consummate , commence the Offer in accordance with its terms within the meaning of the applicable rules and accept for payment each Share validly tendered regulations of the Securities and not properly withdrawn pursuant to Exchange Commission (the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer"SEC"). The obligation obligations of Merger Subsidiary (Sub to, and of Parent to cause Merger Subsidiary) to Sub to, commence the Offer and accept for payment, and pay the Offer Price (without interest) for, each Share validly any shares of Target Common Stock tendered and not properly withdrawn pursuant to the Offer shall be are subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary conditions set forth in Exhibit A. Sub expressly reserves the right to waive any of condition to the Offer Conditions and to make any other changes in or amend or modify the terms of or conditions the Offer, except that, without the consent of Target, Sub shall not (i) reduce the number of shares of Target Common Stock subject to the Offer; provided that without , (ii) reduce the prior consent price per share of Target Common Stock to be paid pursuant to the Company Offer, (which consent may be granted or withheld by the Company in its sole discretioniii) (A) waive the Minimum Condition may not be waivedTender Condition, add to the conditions set forth in Exhibit A or modify any condition set forth in Exhibit A in any manner adverse to the holders of Target Common Stock, (Biv) no except as provided in the next sentence, extend the Offer, (v) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends Offer or adds to the Offer Conditions or amends any other term of (vi) otherwise amend the Offer in any manner adverse to the stockholders holders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01Target Common Stock. Notwithstanding the foregoing, Sub may, without the consent of Target, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary toA) extend the Offer Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall Sub's obligation to purchase shares of Target Common Stock are not be satisfied, until such time as such conditions are satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance DateB) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; Offer and (C) extend the Offer for any reason on one or more occasions for a period of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence. Parent and Sub agree that if all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer then, provided that in no event all such conditions are reasonably capable of being satisfied, Sub shall Merger Subsidiary extend the Offer from time to time until such conditions are satisfied or waived, provided that Sub shall not be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Outside Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon On the terms and subject to the conditions of the OfferOffer and this Agreement, Merger Subsidiary Sub shall, and Parent shall cause it Sub to, accept pay for payment and pay for, as promptly as practicable after the expiration all shares of the Offer, all Shares (1) Target Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in that Sub becomes obligated to purchase pursuant to the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly Offer as soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement expiration of the execution Offer.
(b) On the date of this Agreementcommencement of the Offer, Merger Subsidiary shall, Parent and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TOOffer, which shall include a revised contain an offer to purchase and form of a related letter of transmittal reflecting and summary advertisement (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”"), . Parent and (ii) to the extent required by applicable U.S. federal securities laws, cause Sub agree that the Offer Documents shall comply as to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply form in all material respects with the Securities Exchange Act of 1934 Act (the "Exchange Act"), and the rules and regulations promulgated thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the CompanyTarget'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 (misleading, except that no representation or warranty is made by Parent and Merger subsidiary shall have no obligation or Sub with respect to information supplied by Target or any information of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents supplied by the Company or its Representatives in writing)Documents. Each of Parent, Merger Subsidiary Sub and the Company agrees Target shall promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and each of Parent and Sub shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to amend or supplement the Offer Documents and to cause the Schedule TO Offer Documents as so corrected amended or supplemented to be filed with the SEC and the Offer Documents as so corrected amended or supplemented to be disseminated to holders of SharesTarget's stockholders, in each case as and to the extent required by applicable U.S. federal Federal securities laws. The Company Target and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and upon the Offer Documents each time before any such document is filed prior to their filing with the SEC after or dissemination to the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselstockholders of Target. Parent and Merger Subsidiary Sub shall provide the Company Target and its counsel in writing with any written or oral comments Parent, Merger Subsidiary Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject .
(c) Parent shall provide or cause to be provided to Sub on a timely basis the funds necessary to purchase any shares of Target Common Stock that Sub becomes obligated to purchase pursuant to the provisions hereof, promptly respond to such commentsOffer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VIII hereof and none of the events set forth in the second paragraph of Annex I hereto shall have occurred that would give rise to a right to terminate and be existing, Purchaser shall, and Parent shall cause Purchaser to, commence (within the Offer pursuant to any meaning of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable following the filing Solicitation Period End Time, but no later than five (5) Business Days thereafter (or such other later date as the parties may mutually agree in writing). The obligation of such amendmentPurchaser to, and (iv) make such other amendments as are necessary or appropriate of Parent to conform to cause Purchaser to, accept for payment and pay for any Shares tendered in the requirements of this Agreement. The Offer and not withdrawn shall be subject to the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other those conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the . The conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer set forth on Annex I are for the sole benefit of Parent and (y) the earliest date as of which Purchaser and each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Purchaser expressly reserves the right from time to time, subject to Sections 1(b) and 1(d) hereof, to waive any of such condition, to increase the Offer Conditions and Price, or to make any other changes in the terms and conditions of the Offer. The Company agrees that no Shares held by the Company or conditions any of its Subsidiaries will be tendered pursuant to the Offer; provided that without .
(b) Without the prior written consent of the Company Company, neither Parent nor Purchaser shall (which consent may be granted i) decrease the Offer Price or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (ii) decrease the number of Shares sought to be purchased in the Offer, amends (iii) amend or adds waive satisfaction of the Minimum Tender Condition (as defined in Annex I), (iv) impose conditions to the Offer Conditions or amends any other term of the Offer in any manner adverse addition to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer set forth on Annex I or (v) amend the conditions to the Offer set forth on Annex I in any manner that is adverse to the holders of the Shares.
(c) The Offer shall not be satisfied or waived, from time made by means of an offer to time until purchase (the “Offer to Purchase”) having such terms and conditions are satisfied (other than conditions which by their nature are to be satisfied as set forth in Annex I hereto. As soon as practicable on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend date the Offer for any period required by any ruleis commenced (within the meaning of Rule 14d-2 under the Exchange Act), regulation, interpretation or position of Parent and Purchaser shall file with the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the a Tender Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period Statement on Schedule TO (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or all amendments, exhibits and supplements thereto, the “Offer DocumentsSchedule TO”), and (ii) with respect to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to will comply in all material respects with the 1934 Act provisions of all applicable federal securities laws, and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements, exhibits or amendments thereto, and any other schedule or form which is filed in connection with the Offer and related transactions, including any schedule or form filed pursuant to Chapter 80B of the Minnesota Statutes, are referred to collectively herein as the “Offer Documents”). Parent and Purchaser shall disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities laws. Parent and Purchaser shall file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes that will comply in all material respects with the provisions of all applicable Minnesota Statutes and shall disseminate the Offer Documents, including any such registration statement required by Chapter 80B of the Minnesota Statutes, to the holders of the Shares as and to the extent required by, and within the time period required by, Chapter 80B of the Minnesota Statutes. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that may be required by applicable securities laws or reasonably requested by Parent or Purchaser for inclusion in the Schedule TO and the rules Offer Documents. Parent and regulations thereunder Purchaser hereby further agree that the Schedule TO and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company’s shareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except misleading; provided, however, that no representation or warranty is made by Parent and Merger subsidiary shall have no obligation or Purchaser with respect to any information supplied by or on behalf of the Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company hereby agrees that the information provided by or on behalf of the Company specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents supplied by 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 Company or its Representatives statements therein, in writing)light of the circumstances under which they were made, not misleading. Each of Parent, Merger Subsidiary Purchaser and the Company agrees shall promptly to correct any information provided by or on behalf of it or any of its Affiliates for use in the Schedule TO and or the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, Parent and Purchaser shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to cause the Schedule TO and the Offer Documents, as so amended, to reflect such corrected information, to be filed with the SEC and the other Offer Documents Documents, as so amended to reflect such corrected information, to be disseminated to holders of Sharesthe Company’s shareholders, in each case as and to the extent required by applicable U.S. federal securities lawslaws or the Minnesota Statutes. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the any Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Merger Subsidiary Parent and Purchaser shall give reasonable and good faith due consideration to any comments made all the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with copies of any written or comments, and shall inform them of any oral comments comments, that Parent, Merger Subsidiary Purchaser or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, andand any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and Purchaser shall give due consideration to all reasonable additions, deletions or changes suggested thereto by the Company and its counsel.
(d) Subject to the terms and conditions of this Agreement and the Offer, the Offer to Purchase shall provide that the Offer will expire at midnight, New York time, on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1 promulgated under the Exchange Act) after the date the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Purchaser agrees that it shall not terminate or withdraw the Offer or extend the expiration date of the Offer unless, at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived or, in the case of termination, such termination is in connection with the termination of this Agreement. If at the expiration date of the Offer, the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived, Parent shall cause Purchaser to extend the expiration date of the Offer until the date such conditions are satisfied or earlier waived and Purchaser becomes obligated to accept for payment and pay for Shares tendered pursuant to the Offer if such conditions may, as determined by Parent in its sole discretion, be satisfied prior to the applicable termination date set forth in Section 8.2(a). Notwithstanding the foregoing, Parent may, without the consent of the Company, cause Purchaser to (i) extend the expiration date of the Offer (as it may be extended) for any period required by applicable rules and regulations of the SEC in connection with an increase in the consideration to be paid pursuant to the Offer and (ii) extend the expiration date of the Offer (as it may be extended) for up to two periods, each for up to five (5) Business Days, if on such expiration date the conditions for the Offer described on Annex I hereto shall have been satisfied or earlier waived, but the number of Shares that have been validly tendered and not withdrawn, when added to the Shares, if any, beneficially owned by Parent represents less than 90 percent (90%) of the then issued and outstanding Shares on a fully diluted basis. Notwithstanding the foregoing, Purchaser (or Parent on its behalf) may, in its sole discretion, elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 promulgated under the Exchange Act.
(e) Subject to the terms and conditions set forth in this Agreement and the Offer, Purchaser shall accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after the applicable expiration date of the Offer (as it may be extended) and in any event in compliance with Rule 14e-1(c) promulgated under the Exchange Act. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer or during any subsequent offering period shall be paid net to the holder thereof in cash, subject to reduction only for any applicable Federal back-up withholding or other Taxes payable by such holder. To the provisions hereofextent any such amounts are so deducted or withheld, promptly respond such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such commentsamounts would otherwise have been paid. Parent shall provide, or cause to be provided to Purchaser, on a timely basis, the funds necessary to pay for any shares of Common Stock that Purchaser accepts or is obligated to accept for payment pursuant to the Offer, and shall cause Purchaser to perform on a timely basis all of Purchaser’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VIII and none of the events or conditions set forth in Annex A shall have occurred that would give rise to a right to terminate the Offer pursuant to any of and be existing and shall not have been waived in writing by Parent or Merger Sub (the conditions set forth in Annex IA, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Tender Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfiedSub shall, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary Sub to, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and on August 31, 2007. Without the prior written consent of the Company, Merger Sub shall not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay decrease the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends or adds decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose conditions to the Offer Conditions in addition to the Tender Offer Conditions, waive or amends amend the Minimum Condition or amend any other term of the Offer in any a manner which is materially adverse to the stockholders Company Shareholders; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any of the CompanyTender Offer Conditions, other than 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.
(Cb) the expiration date shall not be extended except as otherwise provided hereinMerger Sub shall, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary Sub to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of file with the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the a Tender Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance Statement on Schedule TO with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant respect to the Offer and (2) validly tendered in the Subsequent Offering Period (on the date on which Shares are first accepted for payment, that the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TOOffer is commenced, which Tender Offer Statement shall include a revised an offer to purchase purchase, form of transmittal letter and form of letter notice of transmittal reflecting the terms and conditions set forth in this Agreement guaranteed delivery (collectively, together with any supplements or amendments or supplements thereto, collectively, the “Offer Documents”)) and, and (ii) subject to the extent required by applicable U.S. federal securities lawsCompany’s compliance with Section 1.02(c), cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees Shareholders in accordance with the applicable requirements of the U.S. federal securities Laws. Parent and Merger Sub agree that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to shall comply in all material respects with the 1934 Act and applicable U.S. federal securities Laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date first filed with the SEC and on the date first published, sent or given to the stockholders of Company Shareholders and on the CompanyAcceptance Date, 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 (misleading, except that no covenant, agreement, representation or warranty is made by Parent and or Merger subsidiary shall have no obligation Sub with respect to any information in the Offer Documents supplied by the Company for inclusion or its Representatives incorporation by reference in writing)the Offer Documents. Each of ParentThe Company, Parent and Merger Subsidiary and the Company agrees Sub each agree promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and the Company Shareholders to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(b) . The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before and any such document is filed amendments thereto in advance of filing with the SEC after or dissemination to the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsCompany Shareholders, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall (i) provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments Parent, Parent or Merger Subsidiary or their respective Affiliates or counsel Sub may receive from the SEC or its staff (the “SEC Staff”) with respect to the Offer Documents promptly, but in no event later than twenty-four hours, as promptly as practicable after the receipt of thereof, (ii) consult in good faith with the Company and its counsel prior to responding to any such comments, and, subject and (iii) provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of Parent and Merger Sub or their counsel.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) Business Day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g) (3) under the Exchange Act) (the “Expiration Date”), unless Merger Sub shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the following provisions hereofof this sentence or as may be required by applicable Law, promptly respond 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 shall have the right, in its sole discretion, but not the obligation to such comments(i) extend the Offer for one or more periods of not more than five Business Days each if, at the scheduled Expiration Date, any of the Tender Offer Conditions shall not have been satisfied or waived; or (ii) 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 Offer, together with any shares of Company Common Stock then owned by Parent, is less than 90% of the outstanding shares of Company Common Stock, commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three (3) to twenty (20) Business Days to acquire outstanding shares of Company Common Stock. Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or of the Staff applicable to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article VI hereof and none of the conditions set forth in Annex IA hereto (the "Offer Conditions") shall have occurred or be existing, as promptly as practicable after within six Business Days of the date hereof, but in no event later than three Business Days following Acquisition will, and Parent will cause Acquisition to, commence a tender offer (the public announcement "Offer") for all of the execution outstanding shares of this Agreementcommon stock, Merger Subsidiary shall amend par value $0.01 per share, of the Offer to (i) increase the purchase price to $6.50 per Share Company (the “Offer Price”), "Company Common Stock") at a price per share of the Company Common Stock of U.S. $19.10 net to the seller in cashcash (such price, (iior any higher price paid in the Offer, the "Price Per Share") provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with upon the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I A hereto.
(the “Offer Conditions”), promptly after the later of (xb) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has Provided that this Agreement shall not have been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer terminated in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to Article VI hereof, the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (Acquisition to, and of Parent to cause Merger Subsidiary) to Acquisition to, accept for payment, purchase and pay the Offer Price (without interest) for, each Share validly for any Company Common Stock tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
Conditions including the condition that at least that number of shares of Company Common Stock equivalent to a majority of the total issued and outstanding shares of Company Common Stock on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (b) Merger Subsidiary the "Minimum Condition"); provided that for the purpose of determining whether the Minimum Condition has been met, any shares of Company Common Stock that have been acquired by Parent pursuant to the option granted to Parent in the Shareholders Agreement shall be deemed to have been validly tendered and not withdrawn prior to the expiration of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered to Acquisition pursuant to the Offer. Acquisition expressly reserves the right right, in its sole discretion, to waive any of the Offer Conditions (other than the Minimum Condition), to increase the consideration payable in the Offer and to make any other changes in the terms of or conditions to the Offer; provided provided, however, that Acquisition will not, and Parent will cause Acquisition not to, without the prior written consent of the Company (which such consent may to be granted or withheld authorized by the Company in its sole discretionBoard): (i) (A) waive the Minimum Condition may not be waivedCondition, (Bii) no decrease the amount or change may be made that changes the form of consideration to be paidpayable in the Offer, decreases the price per Share or (iii) decrease the number of Shares shares of Company Common Stock sought in the Offer, amends or adds (iv) impose additional conditions to the Offer, (v) change any Offer Conditions or amends Condition, (vi) amend any other term of the Offer in any manner materially adverse to the stockholders holders of Company Common Stock (other than Parent or Acquisition) or (vii) except as provided below, extend the Offer. Subject to the terms and conditions hereof, the Offer shall remain open until midnight, New York City time, on the date that is twenty Business Days after the Offer is commenced (within the meaning of Rule 14d-2 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act")); provided, however, that without the consent of the CompanyCompany Board, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, Acquisition may (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from for one or more periods (each such period shall not exceed ten Business Days) until such time to time until as such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and , (y) Merger Subsidiary shall extend the Offer for any such period as may be required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “"SEC”") or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event shall Merger Subsidiary be required to , or (z) extend the Offer for an aggregate period of not more than ten Business Days beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.latest
Appears in 1 contract
The Offer. (a) Provided that nothing none of the events set forth in ANNEX I shall have occurred that would give rise to a right to terminate or are continuing (other than the Offer pursuant to any of the conditions requirements set forth in Annex clauses "(i)," "(ii)," "(iii)(e)" and "(iii)(f)" of ANNEX I), as promptly as practicable after the date hereof, of this Agreement (but in no event later more than three Business Days following five business days after the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to Acquisition Sub shall commence (within the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing Offer.
(b) The obligation of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law Acquisition Sub to accept for payment Shares and to pay for any shares of Company Common Stock tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to (i) the satisfactioncondition that there shall be validly tendered a number of shares of Company Common Stock which, or waiver by together with any outstanding shares of Company Common Stock with respect to which Parent or Merger Subsidiaryhas sole beneficial ownership, of each represents at least a majority of the Offer Conditions.
Fully Diluted Number of Company Shares (bthe "MINIMUM CONDITION") Merger Subsidiary and (ii) the other conditions set forth in Annex I. Acquisition Sub expressly reserves the right to waive any of increase the Offer Conditions and Per Share Amount or to make any other changes in the terms and conditions of or conditions to the OfferOffer not inconsistent with the provisions of this Agreement; provided provided, however, that without the prior written consent of the Company Company, (which consent may be granted or withheld by the Company in its sole discretion) (Ai) the Minimum Condition may not be amended or waived, ; and (Bii) no change may be made that changes the form of consideration to be paid, decreases the price per Share share of Company Common Stock or the number of Shares shares of Company Common Stock sought in the Offer, amends or adds imposes conditions to the Offer Conditions in addition to those set forth in Annex I, or amends any other term of extends the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer beyond the initial expiration date of the Offer (except as provided in (c), below). Notwithstanding anything to the contrary contained in this Agreement, the Offer may not be withdrawn prior to the expiration date (or any rescheduled expiration date) of the Offer.
(c) The Offer shall initially be scheduled to expire 20 business days following the commencement thereof. If, at any then-scheduled expiration date, the conditions to the Offer shall have not be been satisfied or waived, from time to time until such conditions are satisfied waived (other than conditions which by their nature are not capable of being satisfied), Acquisition Sub shall be entitled to extend the Offer for such amount of time as Acquisition Sub reasonably believes is necessary to cause such Offer conditions to be satisfied on satisfied; provided, however, that Acquisition Sub shall not be entitled to extend the Acceptance DateOffer to any date occurring after 60 business days following the commencement of the Offer without the prior written consent of the Company. Notwithstanding anything to the contrary contained in this Agreement: (i) Acquisition Sub may, without the consent of the Company or waived; and any other Person (yA) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation rule or position regulation of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market SEC applicable to the Offer; provided Offer and (B) if more than a majority of the Fully Diluted Number of Company Shares but less than 90% of the Fully Diluted Number of Company Shares shall have been validly tendered pursuant to the Offer as of the scheduled or extended expiration date, extend the Offer for an additional period of not more than 20 business days, provided, however, that in no event Acquisition Sub shall Merger Subsidiary not be required entitled to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required this clause (B) to extend any date occurring after 60 business days following the commencement of the Offer beyond without the End Date. Following expiration prior written consent of the Offer, Merger Subsidiary shall, if requested by the Company, or ; and (ii) Acquisition Sub may, in its sole discretionwithout the consent of the Company or any other Person, elect to provide for a subsequent offering period (“Subsequent Offering Period”and one or more extensions thereof) pursuant to, and in accordance with the terms of, Rule 14d-11 of under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(cd) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, Parent and Acquisition Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TO, which shall include a revised Offer that will contain or incorporate by reference the offer to purchase and form of the related letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents offer to purchase and related documents to be disseminated to holders of Sharesshares of Company Common Stock. Each of Parent, Merger Subsidiary Parent and the Company agrees Acquisition Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements thereto (which together constitute the other Offer Documents "OFFER DOCUMENTS") filed by any of them either Parent or Acquisition Sub with the SEC to comply in all material respects with the 1934 Exchange Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 laws (except that Parent and Merger subsidiary Acquisition Sub shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary Acquisition Sub and the Company agrees to respond promptly to any comments of the SEC or its staff and to promptly correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish to Parent and Acquisition Sub all information concerning the Acquired Corporations and the Company's stockholders (i) that may be required in connection with any action contemplated by this Section 1.1(d) within two business days after the public announcement of the execution of this Agreement and (ii) reasonably requested in connection with any action contemplated by this Section 1.1(d) within two business days after such request. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall Acquisition Sub agree to provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary Acquisition Sub or their respective Affiliates or counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate The Merger Agreement contemplates the commencement of the Offer pursuant to any of the conditions set and sets forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that consummation of the expiration date Offer. For a description of the Offer shall be midnight (New York City time) on conditions, see "--Certain Conditions of the date that is ten Business Days (Offer" below. Assuming the prior satisfaction or waiver of the Offer Conditions, Parent will cause the Purchaser to accept for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentpayment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered pay for, in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it Expiration Date or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectextension thereof. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect If all conditions to the Offer Documents promptlyhave been satisfied or waived and Purchaser extends the Expiration Date because less than 90% of the Shares then issued and outstanding (including the Shares owned by Parent) have been tendered in the Offer, but in Shares will no event later than twenty-four hours, after longer have any withdrawal rights and any Shares so tendered will be accepted for payment and paid for by the receipt of such comments, andPurchaser and the Purchaser will extend the Offer for an aggregate period not to exceed 20 business days. THE MERGER The Merger Agreement provides that, subject to the provisions hereofconditions of the Merger Agreement, promptly respond at the Effective Time, the Purchaser will be merged with and into the Company. As a result of the Merger, the Company will become a wholly owned subsidiary of Parent. In the event the Purchaser acquires at least 90% of the Shares in the Offer, Parent may effect the Merger without the approval of the Company's stockholders under the DGCL. CONVERSION OF SHARES At the Effective Time, by virtue of the Merger and without any action on the part of any stockholder, each Share (except Shares held in the Company treasury and Shares owned by Parent and its wholly owned Subsidiaries) issued and outstanding immediately before the Effective Time will be converted into the right to receive the Merger Consideration, or such commentshigher per share amount as is paid in the Offer. Each Share owned by Parent or any wholly owned Subsidiary of Parent immediately before the Effective Time will not be cancelled, and will be converted into one share of Surviving Corporation Common Stock.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 9.1, as promptly as practicable after the date hereof, possible but in no event later than three Business Days following five (5) business days after the public announcement of the execution hereof by the parties, Parent and GP shall cause Acquisition to commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, Merger Subsidiary as amended (the "Exchange Act"), the Offer; and to cause Acquisition to use its best efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall amend accept for payment issued and outstanding shares of common stock, $0.001 par value of the Company (individually a "Share" and collectively, the "Shares") together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer to (i) increase at the purchase price to $6.50 per Share (earliest time following expiration of the “Offer Price”), net to the seller in cash, (ii) provide that the all conditions to the Offer shall be as set forth in Annex I have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (pay for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform Shares tendered pursuant to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be the number of Shares validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawnOffer, a number of Shares that, together combined with the Shares then already owned by Parent and its AffiliatesParent, represents GP, Acquisition or any of their affiliates, constitutes at least a majority of the total number of then outstanding Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and exercisable unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the “"Minimum Stock Condition”") and to the other conditions set forth in Annex I and to no other conditionsArticle 7. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Acquisition expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount, and to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waivedParent, (B) GP and Acquisition agree that no change may be made that without the written consent of the Company which decreases the Per Share Amount, which changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, which reduces the maximum number of shares to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), which otherwise modifies or amends or adds the conditions to the Offer Conditions or amends any other term of the Offer in any a manner that is materially adverse to the stockholders holders of the CompanyShares, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate which imposes conditions to the Offer prior in addition to any scheduled expiration date except those set forth in Article 7 or which extends the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any beyond September 30, 1999 (except that Acquisition may extend the expiration date of the conditions Offer beyond September 30, 1999 as required to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by comply with any rule, regulation, regulation or interpretation or position of the U.S. Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (the “SEC”including any action or inaction by Acquisition) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary may be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)waived by Acquisition, in which case Merger Subsidiary shall be required whole or in part at any time and from time to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or maytime, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 . The failure by Acquisition at any time to exercise any of the 1934 Actforegoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Subject The Per Share Amount shall be paid net to the foregoingseller in cash, including the requirements less any required withholding of Rule 14d-11taxes, and upon the terms and subject to the such conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after . The Company agrees that no Shares held by the expiration Company or any of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly its subsidiaries will be tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(cb) As promptly soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementParent, Merger Subsidiary shallGP and Acquisition agree that Parent, GP and Acquisition shall cause its Affiliates to, (i) file with the SEC an amendment Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Schedule TOOffer, which shall include a revised an offer to purchase and form of transmittal letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments thereof or supplements thereto, collectively the “"Offer Documents”"), . The Company and (ii) its counsel shall be given a reasonable opportunity to the extent required by applicable U.S. federal securities laws, cause review and comment on the Offer Documents prior to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them their filing with the SEC or dissemination to the stockholders of the Company. Parent and Acquisition agree to provide the Company and its counsel with any comments which Parent, Acquisition or their counsel may receive from the SEC or the staff of the SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the 1934 Act provisions of applicable federal securities laws. The information provided and the rules to be provided by Parent, GP and regulations thereunder and other applicable Law and that Acquisition for use in the Offer DocumentsDocuments shall not, when on the date filed with the SEC and on the date first published, published or sent or given to the stockholders of Company's stockholders, as the Companycase may be, shall not contain any untrue statement of a material fact or nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except misleading, provided, however, that Parent and Merger subsidiary shall have no obligation representation or warranty is made by Parent, GP or Acquisition with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Article 11 and none of the conditions events set forth in Annex IA hereto shall have occurred or be existing, Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, as promptly as practicable after the date hereof, hereof (but in no event later than three the fifth Business Days following Day after the public announcement of the execution terms of this Agreement), Merger Subsidiary shall amend commence (within the Offer meaning of Rule 14d-2(a) of the 1934 Act), an offer (the "Offer") to purchase (ix) increase any and all of the outstanding shares of Company Class A Stock for a purchase price to of $6.50 64.00 per Share share (the “"Class A Offer Price”") and (y) any and all (subject to the Minimum Condition (as defined below)) of the outstanding shares of Company Class B Stock for a purchase price of $6.40 per share (the "Class B Offer Price" and, together with the Class A Offer Price, the "Offer Price"), in each case, net to the seller in cash, (ii) provide that the conditions subject to reduction for any applicable withholding taxes and, but only if such payment is to be made other than to the registered holder, any applicable stock transfer taxes payable by such holder. The Offer shall will be as made pursuant to an Offer to Purchase and related Letter of Transmittal containing the terms and conditions set forth in Annex I and that no other conditions shall apply, (iii) provide that the this Agreement. The initial expiration date of the Offer shall be midnight the twentieth Business Day from and after the date the Offer is commenced (New York City timethe "Initial Expiration Date"). The obligation of Merger Subsidiary to accept for payment, purchase and pay for any shares of Company Stock tendered pursuant to the Offer shall be subject, except as provided in Section 2.01(b), only to the satisfaction of (i) the condition that at least 45,815,000 shares of Company Class B Stock (subject to adjustment for stock splits, stock dividends, recapi- talizations and similar events) (less any shares of Company Class B Stock owned by Parent or Merger Subsidiary or any Affiliate of Parent or Merger Subsidiary on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as shares are necessary or appropriate to conform purchased pursuant to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be Offer) have been validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “"Minimum Condition”") and to (ii) the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this AgreementA hereto; provided, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”)however, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) that Merger Subsidiary expressly reserves the right to waive any of the conditions to the Offer Conditions (other than the Minimum Condition) and to make any other changes change in the terms of or conditions to the Offer; provided that without the prior consent of the Company Offer (which consent may be granted or withheld by other than the Company Minimum Condition) in its sole discretion) (A) , subject to Section 2.01(b). Notwithstanding the previous sentence, Merger Subsidiary may waive the Minimum Condition may not be waivedso long as (x) it has irrevocably waived all other conditions to the Offer (and may, as a legal matter, irrevocably waive such conditions and otherwise purchase shares of Company Stock pursuant to the Offer), (By) no change may be made that changes Parent has irrevocably exercised or irrevocably committed to exercise the form Option and (z) the shares of consideration Company Stock acquired pursuant to be paidthe Offer and through such Option exercise would satisfy the Minimum Condition (such event being referred to as a "Constructive Satisfaction of the Minimum Condition").
(b) Without the prior written consent of the Company, decreases neither Parent nor Merger Subsidiary will (i) decrease the price per Share share of Company Class A Stock or Company Class B Stock payable in the Offer, (ii) decrease the number of Shares shares of Company Class A Stock or Company Class B Stock sought in the Offer, amends or adds (iii) change the form of consideration payable in the Offer, (iv) impose conditions to the Offer Conditions in addition to those set forth in Section 2.01(a) and Annex A, (v) except as provided below or amends required by any other rule, regulation, interpretation or position of the SEC applicable to the Offer, change the expiration date of the Offer, or (vi) otherwise amend or change any term or condition of the Offer in any a manner adverse to the stockholders holders of shares of Company Class A Stock or Company Class B Stock. Notwithstanding anything in this Agreement to the contrary, without the consent of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate have the Offer prior right to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if beyond the Initial Expiration Date in the following events: (i) from time to time, but in no event later than the date which is 60 days from the Initial Expiration Date, if, at the scheduled Initial Expiration Date (or extended expiration date of the Offer Offer, if applicable), any of the conditions to the Offer (other than the Minimum Condition to which this clause does not apply) shall not be have been satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the OfferOffer or any period required by applicable law; (iii) if all conditions to the Offer other than the Minimum Condition are satisfied or waived, for one or more periods not to exceed ten (10) business days each (but no more than an aggregate of thirty (30) business days for all such extensions); or (iv) if all of the conditions to the Offer are satisfied or waived but the number of shares of each class of Company Stock validly tendered and not withdrawn is less than ninety percent (90%) of the then out- standing number of shares of each class of Company Stock, for an aggregate period not to exceed twenty (20) business days (for all such extensions), provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall accept and promptly pay for all securities tendered prior to the date of such extension and shall waive any condition to the consummation of the Merger other than the condition in Section 10.01(c) that may fail to be required satisfied during such extension. In addition, Parent and Merger Subsidiary agree that notwithstanding clause (iii) of the previous sentence, Merger Subsidiary may, and if requested by the Company shall, from time to time extend the Offer beyond Offer, if at the End Date. Following Initial Expiration Date (or any extended expiration date of the Offer, including pursuant to this sentence, if applicable), no conditions to the Offer other than the Minimum Condition, the HSR Condition (as defined in Annex A) and/or the conditions set forth in clause (a) or clause (b) of Annex A shall excuse performance by Merger Subsidiary shallunder Annex A, if requested by until the Companyearlier of ten (10) business days after such previously scheduled expiration date or March 31, or may, in its sole discretion, provide 2001; provided that the Company will not make such a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 request where a Constructive Satisfaction of the 1934 ActMinimum Condition exists. Subject Upon the prior satisfaction or waiver of all the conditions to the foregoing, including the requirements of Rule 14d-11, and upon the terms Offer and subject to the terms and conditions of the Offerthis Agreement, Merger Subsidiary shallwill, and Parent shall will cause it Merger Subsidiary to, accept for payment payment, purchase and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) shares of Company Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in as soon as reasonably practicable after the Subsequent Offering Period (expiration of the date Offer. Parent shall provide or cause to be provided to Merger Subsidiary on which Shares are first accepted a timely basis the funds necessary to accept for payment, and pay for, any shares of Company Stock that Merger Subsidiary becomes obligated to accept for payment, and pay for, pursuant to the “Acceptance Date”)Offer.
(c) As promptly soon as reasonably practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Parent and Merger Subsidiary shall, and shall file or cause its Affiliates to, (i) file to be filed with the SEC an amendment to the a Tender Offer Statement on Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement TO (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii"Schedule TO") with respect to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of SharesOffer. Each of Parent, Parent and Merger Subsidiary and the Company agrees agree that they shall cause the Schedule TO will comply as to form and the other Offer Documents filed by any of them with the SEC to comply content in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders provisions of the Companyfederal securities laws, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading misleading, and will contain the offer to purchase and form of the related letter of transmittal (except that Parent such Schedule TO and Merger subsidiary shall have no obligation with respect such documents included therein pursuant to any information in which the Offer Documents supplied by will be made, together with any supplements or amendments thereto, the Company or its Representatives in writing"Offer Documents"). Each of Parent, Merger Subsidiary Parent and the Company agrees promptly each agree to correct promptly any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect and to supplement the information provided by it specifically for use in the Schedule TO or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesshares of Company Stock, in each case case, as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall agree to provide to the Company and its counsel with any written comments or oral comments other communications which Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the Staff of the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsthereof.
Appears in 1 contract
The Offer. (a) Terms and Conditions of the Offer. Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer been terminated pursuant to any of the conditions set forth in Annex IArticle VIII, as promptly as practicable after the date hereof, hereof (but in no event later more than three ten (10) Business Days following after the public announcement of the execution of this Agreementdate hereof), Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer in accordance with its to purchase any and all of the outstanding Company Shares at a price per Company Share (such date, the “Offer Commencement Date”), subject to the terms and accept for payment each Share validly tendered and not properly withdrawn pursuant of Section 2.11, equal to the Offer Price. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that is disseminated to all of the Company Stockholders and promptly following contains the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered terms and not properly withdrawn pursuant to the Offer. conditions set forth in this Agreement and in Annex A. The obligation of Merger Subsidiary (Sub to, and of Parent to cause Merger Subsidiary) to Sub to, accept for payment, payment and pay the Offer Price (without interest) for, each Share for any Company Shares validly tendered (and not properly withdrawn validly withdrawn) pursuant to the Offer shall be subject only to the satisfaction, satisfaction or waiver by Parent or Merger Subsidiaryof:
(i) the condition (the “Minimum Condition”) that, of prior to the Expiration Time, there shall have been validly tendered and not validly withdrawn, in each case, in accordance with the terms of the Offer Conditions.
a number of Company Shares that, together with the Company Shares then owned by Parent, Merger Sub and their respective controlled Affiliates (b) Merger Subsidiary expressly reserves the right to waive any if any), represent one more than 50% of the Offer Conditions and sum of (x) all then outstanding Company Shares (not including Company Shares tendered pursuant to make guaranteed delivery procedures for which the underlying Company Shares have not yet been delivered) plus (y) the aggregate number of Company Shares issuable to holders of Company Options from which the Company has received valid notices of exercise (including payment of any other changes applicable exercise price in accordance with the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretionStock Plans and applicable award agreement) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the OfferOffer (and as to which Company Shares have not yet been issued to such exercising holders of Company Options), all plus (z) the aggregate number of Company Shares (1) validly tendered and not withdrawn pursuant issuable to holders of Company Convertible Notes from which the Company has received valid notices of conversion to Company Shares in accordance with the Company Convertible Notes prior to the expiration of the Offer (and (2) validly tendered in the Subsequent Offering Period (the date on as to which Company Shares are first accepted for payment, the “Acceptance Date”have not yet been issued to such exercising holders of Company Convertible Notes).; and
(cii) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement each of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and other conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.Annex A.
Appears in 1 contract
Sources: Merger Agreement
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth this Agreement and this Agreement not having been terminated in Annex Iaccordance with Section 7.1, as promptly as practicable after the date hereof, but in no event later than three ten (10) Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered Agreement in accordance with the terms of this Agreement, Parent and Purchaser shall commence (within the Offer prior to meaning of Rule 14d-2 under the expiration date Securities Exchange Act of the Offer and not withdrawn1934, a number of Shares that, as amended (together with the Shares then owned by Parent rules and its Affiliatesregulations promulgated thereunder, represents a majority the "Exchange Act")) the Offer to exchange all of the total number outstanding shares of Shares outstanding on a fully-diluted basisCompany Common Stock for the right to receive from Purchaser, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to withdrawn, the OfferOffer Price payable in an amount of cash (the "Cash Consideration") and a number of validly issued, fully paid and nonassessable shares of Parent Common Stock (the "Stock Consideration") in each case determined in accordance with Annex II hereof (such cash amount and number of shares of Parent Common Stock, the "Offer Consideration"). The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) Purchaser to accept for payment, and pay the Offer Price (without interest) for, each Share validly Shares tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of conditions set forth in Annex I hereto (the "Offer Conditions.
") (b) Merger Subsidiary expressly reserves the right to waive any or all of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted waived in whole or withheld in part by the Company Purchaser in its sole discretion) (A) discretion other than the Minimum Condition may not be waivedCondition, (Bas defined below, or any Parent Stock Condition, as defined in Annex I hereto) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds and to the Offer Conditions or amends any other term terms and conditions of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any this Agreement. The initial scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to shall be twenty (20) Business Days after the Offer is commenced. As used herein, the term "Minimum Condition" shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary mean that there shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) have been validly tendered and not withdrawn pursuant prior to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement expiration of the execution Offer (including any extension thereof) such number of this AgreementShares that would constitute seventy percent (70%) of the outstanding Voting Common Stock (determined on a fully diluted, Merger Subsidiary shallas converted basis for all outstanding shares of Class B Common Stock, stock options and shall cause its Affiliates to, (i) file with the SEC an amendment any other rights to the Schedule TO, which shall include a revised offer to purchase and form acquire shares of letter of transmittal reflecting the terms and conditions set forth in this Agreement Voting Common Stock (collectively, together with any amendments or supplements thereto, the “Offer Documents”a "Fully Diluted Basis"), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares). Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied No Shares held by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use subsidiaries will be tendered in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentsOffer.
Appears in 1 contract
Sources: Merger Agreement (Kellwood Co)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 hereof and that none of the events set forth in paragraphs (a) through (l) of Annex A hereto shall have occurred that would give rise to a right to terminate or be existing (and shall not have been waived by Parent), Parent shall commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) as promptly as reasonably practicable after the date hereof the Offer to exchange for each Company Share, at the election of the holder thereof, either: (i) 0.26 (the "Exchange Ratio") of a share of Parent Common Stock; or (ii) cash in the amount of $12.10 (the "Per Share Cash Consideration"). Shareholders who validly tender Company Shares but fail to make an election shall be deemed to have elected to receive the Per Share Cash Consideration for each share of Company Common Stock validly tendered.
(b) The obligation of Parent to accept for payment and pay for Company Shares tendered pursuant to any of the Offer in the form and amount specified in Section 2.1 shall be subject only to the conditions set forth in Annex IA hereto; provided, as promptly as practicable after however, no certificates or scrip representing fractional shares of Parent Common Stock shall be issued in connection with the date hereof, but in no event later than three Business Days following the public announcement exchange of Parent Common Stock for Company Shares upon consummation of the execution Offer, and in lieu thereof each tendering shareholder who would otherwise be entitled to a fractional share of this Agreement, Merger Subsidiary shall amend Parent Common Stock in the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net will be paid an amount in cash equal to the seller product obtained by multiplying (A) the fractional share interest of such holder (after taking into account all shares of Company Common Stock validly tendered for exchange and not withdrawn by such holder) would otherwise be entitled by (B) the closing price for a share of Parent Common Stock as reported on the NYSE Composite Transaction Tape (as reported in cashthe Wall Street Journal, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no or, if not reported thereby, any other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City timeauthoritative source) on the date that is ten Business Days (Parent accepts Company Shares for this purpose calculated exchange in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing Offer. The Per Share Cash Consideration payable by Parent for each validly tendered Company Share accepted for payment by Parent shall, subject to any required withholding of such amendmentTaxes, and (iv) make such other amendments as are necessary or appropriate to conform be net to the requirements of this Agreementholder thereof in cash. The Offer shall Company agrees that no Company Shares held by the Company or any of its subsidiaries will be subject tendered to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of such conditions, to increase the Exchange Offer Consideration payable in the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided provided, however, that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes without the form prior written consent of consideration to be paid, the Company which (i) decreases the price amount payable per Company Share or tendered pursuant to the Offer, (ii) reduces the maximum number of Company Shares sought that may be exchanged in the Offer, amends or adds (iii) imposes conditions to the Offer Conditions or amends any other term in addition to the conditions set forth in Annex A hereto.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any manner adverse expiration date of the Offer, Parent will accept for exchange and pay for all Company Shares validly tendered and not withdrawn pursuant to the stockholders Offer as soon as practicable after the expiration of the Offer. The initial expiration date of the Offer shall be the twentieth business day following the commencement of the Offer. Parent may, without the consent of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if (i) for one or more periods beyond the initial expiration date but in no event ending later than January 31, 2002 if, at the scheduled initial or extended expiration date of the Offer Offer, any of the conditions to the Offer set forth in Annex A hereto shall not be have been satisfied or to the extent permitted by this Agreement, waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (yii) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event shall Merger Subsidiary be Offer or any period required by applicable Law. In addition, Parent may elect to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject for three business days to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable twenty business days after the expiration acceptance of the Offer, all Company Shares (1) validly tendered and not withdrawn pursuant to the Offer pursuant to Rule 14d-11 promulgated under the Exchange Act to meet the objective (which is not a condition to the Offer) that there be validly tendered, in accordance with the terms of the Offer and (2) validly tendered in such subsequent offer, prior to the Subsequent Offering Period (expiration date of such subsequent offer and not withdrawn a number of Company Shares, which together with Company Shares then owned by Parent, constitutes at least 90% of the date on which Shares are first accepted for payment, the “Acceptance Date”)then outstanding Company Shares.
(cd) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent shall prepare and file with the SEC a registration statement on Form S-4 (together with any supplements or amendments thereto, the "Offer Registration Statement") to register the offer and sale of Parent Common Stock pursuant to the Offer. The Offer Registration Statement will include a preliminary prospectus containing the information required under Rule 14d-4(b) promulgated under the Exchange Act (the "Preliminary Prospectus"). As soon as practicable on the date of commencement of the Offer, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO which will contain or incorporate by reference all or part of the Preliminary Prospectus and forms of the related letter of transmittal/election form and all other ancillary documents with respect to the Offer (together with all supplements and amendments thereto, the "Schedule TO") (the Schedule TO, the Offer Registration Statement and such documents included therein pursuant to which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectivelyOffer will be made, together with any supplements or amendments or supplements thereto, the “"Offer Documents”), ") and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to the holders of Company Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company Sub agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Parent and Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Sub agree to take all steps necessary to cause the Schedule TO and the Offer Registration Statement as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Company Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable an opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC after or disseminated to the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the holders of Company and its counselShares. Each of Parent and Merger Subsidiary shall Sub agrees to provide the Company and its counsel with any written or oral comments Parent, Parent and Merger Subsidiary Sub or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject comments and to consult with the provisions hereof, promptly respond Company and its counsel prior to responding to any such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing Commencement of the Offer. Unless this Agreement shall have occurred that would give rise been terminated in accordance with ARTICLE VIII, and subject to a right the Company having complied with its obligations set forth in Section 1.02(b), as promptly as reasonably practicable after the date of this Agreement (but in no event more than ten Business Days after the date of this Agreement), Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”), such date hereinafter referred to terminate as the “Offer Commencement Date”) the Offer.
(b) Terms and Conditions of the Offer. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, accept for payment, and pay for, any shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer pursuant shall be subject to: (i) the Minimum Tender Condition; and (ii) the satisfaction, or waiver (to any the extent permitted by Law) by Parent or Merger Sub, of the other conditions and requirements set forth in Annex II (together with the Minimum Tender Condition, the “Offer Conditions”). Subject to the prior satisfaction of the Minimum Tender Condition and the satisfaction, or waiver by Parent or Merger Sub, of the other Offer Conditions, Merger Sub shall (and Parent shall cause Merger Sub to) consummate the Offer in accordance with its terms and accept for payment and pay for all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the date hereofExpiration Time; provided, but that with respect to shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in no event later than three Business Days following the public announcement settlement or satisfaction of the execution of this Agreementsuch guarantee, Merger Subsidiary Sub shall amend 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. The Offer Price payable in respect of each share of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), shall be paid net to the seller in cash, (ii) provide that without interest, on the terms and subject to the conditions set forth in this Agreement.
(c) Offer to the Purchase; Adjustment of Offer Price; Waiver of Conditions. The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in Annex I this Agreement, including the Minimum Tender Condition and the Offer Conditions. Parent and Merger Sub expressly reserve the right, to the extent permitted by Law, to waive, in whole or in part, any Offer Condition (other than the Minimum Tender Condition), to increase the Offer Price, or to make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that no other conditions unless otherwise provided by this Agreement or as previously approved in writing by the Company, Merger Sub shall apply, not: (i) reduce the maximum number of shares of Company Common Stock sought to be purchased in the Offer; (ii) reduce the Offer Price; (iii) provide amend, modify, or waive the Minimum Tender Condition; (iv) impose conditions or requirements to the Offer in addition to those set forth in Annex I; (v) amend or modify any Offer Condition in a manner that adversely affects, or that would reasonably be expected to have an adverse effect on, any holders of shares of Company Common Stock, or that would, individually or in the expiration date aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer, the Merger, or the other Transactions; (vi) except as otherwise provided in Section 1.01(d), 1.01(e), or 1.01(g), terminate the Offer or accelerate, extend or otherwise change the Expiration Time; (vii) change the form of consideration payable in the Offer; or (viii) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act.
(d) Expiration of the Offer. The Offer shall be midnight (expire at one minute after 11:59 p.m., New York City time) , on the date that is ten 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing commencement (within the meaning of such amendmentRule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of date and time to which the conditions set forth in Annex I Offer has been so extended (the “Offer Conditions”)Initial Expiration Time, promptly after or such later date and time to which the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered Initial Expiration Time has been extended pursuant to the Offer and (y) the earliest date this Agreement, is referred to as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance DateExpiration Time”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 8, as promptly as practicable after the date hereof, of this Agreement but in no event later more than three ten Business Days following after the public announcement of the execution date of this Agreement, Merger Subsidiary Purchaser shall amend (and Parent shall cause Purchaser to) commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing of such amendment, and Offer.
(ivb) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (xi) the earliest date as of which Merger Subsidiary Purchaser is permitted under applicable Law Legal Requirements to accept for payment Shares tendered pursuant to the Offer and (yii) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger SubsidiaryPurchaser if permitted hereunder, Merger Subsidiary Purchaser shall (and Parent shall cause Merger Subsidiary Purchaser to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (net to the seller in cash, without interest) , for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary Purchaser (and of Parent to cause Merger SubsidiaryPurchaser) to accept for payment, and pay the Offer Price (net to the seller in cash, without interest) , for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger SubsidiaryPurchaser if permitted hereunder, of each of the Offer Conditions.
(bc) Merger Subsidiary The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms and conditions of the Offer as set forth in this Agreement, the Minimum Condition (as defined in Annex I) and the other conditions set forth in Annex I. Purchaser expressly reserves the right (in its sole discretion) to waive any of (x) increase the Offer Conditions Price, (y) waive, in whole or in part, any Offer Condition and to (z) make any other changes in the terms and conditions of or conditions to the Offer; provided, however, that unless otherwise provided that by this Agreement, without the prior written consent of the Company Company, Purchaser shall not (which consent may be granted or withheld by i) decrease the Company in its sole discretion) (A) the Minimum Condition may not be waivedOffer Price, (Bii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases (iii) decrease the price per Share or the maximum number of Shares sought to be purchased in the Offer, amends or adds (iv) impose conditions to the Offer Conditions in addition to the Offer Conditions, (v) amend or amends modify any other term of the Offer Conditions in a manner that adversely affects any holder of Shares, (vi) change or waive the Minimum Condition or (vii) extend or otherwise change the Expiration Date in a manner adverse other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the stockholders Expiration Date (or any rescheduled Expiration Date) of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that unless this Agreement is terminated in accordance with Section 8.
(d) Unless extended pursuant to Section 11.01. Notwithstanding and in accordance with the foregoingterms of this Agreement, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if shall expire at midnight (New York City time) on the scheduled or extended expiration date that is 20 business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer any of (the conditions “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 not be satisfied or waived, extended from time to time until such conditions are as follows:
(1) If on or prior to any then scheduled Expiration Date, any of the Offer Conditions shall not have been satisfied (other than conditions which by their nature are to be satisfied on at the Offer Acceptance Time), or waived by Parent or Purchaser if permitted hereunder, then Purchaser may in its sole discretion (or if requested in writing by the Company prior to such scheduled Expiration Date, Parent shall cause Purchaser to) extend the Offer for one or waived; more successive periods of 10 Business Days (or such other number of Business Days as may be jointly determined by Purchaser and the Company) each in order to permit the satisfaction of such conditions (subject to the right of Purchaser to waive any condition (other than the Minimum Condition) in accordance with this Agreement), provided such extension of the Offer period does not extend past the earlier of (x) the termination of this Agreement pursuant to Section 8.1 and (y) Merger Subsidiary the date, as applicable, that is (A) 90 days after commencement of the Offer (the “Initial Outside Date”), or (B) 120 days after commencement of the Offer (the “Extended Outside Date”) (1) in the event that the HSR Condition shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, by the Initial Outside Date but all of the other Offer Conditions shall have been satisfied (other than the Minimum Condition and conditions which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent or Purchaser if permitted hereunder or (2) in the event that Purchaser is exercising in its sole discretion its option to extend the Offer and the Regulatory Conditions shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, by the Initial Outside Date but all of the other Offer Conditions shall have been satisfied (other than the Minimum Condition and conditions which by their nature are to be satisfied at the Offer Acceptance Time), or waived by Parent or Purchaser if permitted hereunder; and
(2) Purchaser shall extend the Offer for any period or periods required by any rule, regulation, applicable Legal Requirements or interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market its staff applicable to the Offer; provided that in no event . Purchaser shall Merger Subsidiary be required to extend not terminate the Offer beyond prior to any scheduled Expiration Date without the End Date unless Parent or Merger Subsidiary is not then permitted to terminate prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 11.01(b)(i), 8.1. Nothing in which case Merger Subsidiary this Section 1.1 shall be required affect any of the termination rights set forth in Section 8.1.
(f) If fewer than 90% of the number of outstanding Shares are accepted for payment pursuant to extend the Offer beyond or acquired through the End Date. Following expiration Offer and exercise of the OfferTop-Up Option, Merger Subsidiary shall, if requested by the Company, or Purchaser may, in its sole discretion, provide a for one “subsequent offering period period” (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Additionally, in the event that more than 80% of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all then outstanding Shares (1) have been validly tendered and not properly withdrawn pursuant to the Offer following the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to), at the written request of the Company, provide for one “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of at least 10 Business Days immediately following the Expiration Date unless (2i) validly tendered Parent and Purchaser exercise the Top-Up Option or (ii) Parent, Purchaser and their respective Subsidiaries, in the Subsequent Offering Period aggregate, own more than 90% of the outstanding Shares. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (the date on which Shares are first accepted and Parent shall cause Purchaser to) accept for payment, and pay the Offer Price net to the seller in cash, without interest, for, each Share that is validly tendered and not properly withdrawn pursuant to the Offer during such “Acceptance Date”subsequent offering period” promptly after any such Share is tendered during such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(cg) In the event that this Agreement is terminated pursuant to Section 8.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within one Business Day of such termination), irrevocably and unconditionally terminate the Offer, shall not acquire any shares pursuant to the Offer and shall cause any depository acting on behalf of Purchaser to return, in accordance with applicable Legal Requirements, all tendered Shares to the registered holders thereof.
(h) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution Offer (within the meaning of this AgreementRule 14d-2 under the Exchange Act), Merger Subsidiary shall, Parent and Purchaser shall cause its Affiliates to, (i) file with the SEC an amendment 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, which shall include a revised offer ”) that will contain or incorporate by reference the Offer to purchase Purchase and form of the related letter of transmittal reflecting (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto and including exhibits thereto, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Sharesthe Shares in accordance with Rule 14d-4 under the Exchange Act. Each of Parent, Merger Subsidiary Parent and the Company agrees Purchaser agree that they shall cause the Schedule TO and the other Offer Documents filed by any of them either Parent or Purchaser with the SEC to comply in all material respects with the 1934 Exchange Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)Legal Requirements. Each of Parent, Merger Subsidiary Purchaser and the Company agrees to respond promptly to any comments of the SEC or its staff and to promptly correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the Shares, in each case as and to the extent required by applicable U.S. federal securities lawsLegal Requirements. The Company shall promptly furnish or otherwise make available to Parent, Purchaser and Parent’s outside legal counsel all information concerning the Acquired Corporations and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.1(h), including such information required by applicable Legal Requirements to be set forth in the Offer Documents. The Company, its outside legal counsel and the General Counsel of the Company shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed prior to the filing thereof with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall Purchaser agree to provide the Company, its outside legal counsel and the General Counsel of the Company and its counsel with any oral or written or oral comments Parent, Merger Subsidiary Purchaser or their respective Affiliates or Parent’s outside legal counsel may receive from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject . Each of Parent and Purchaser shall respond promptly to any comments of the SEC or its staff with respect to the provisions hereof, promptly respond to such commentsOffer Documents or the Offer.
Appears in 1 contract
Sources: Merger Agreement (Genoptix Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article 7, as promptly as practicable after the date hereof, (but in no event later than three Business Days following the public announcement of the execution of this AgreementFebruary 12, 2024), Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer to purchase for cash any and all Company Shares (other than Company Shares to be cancelled in accordance with Section 2.1(b)) at the Offer Price. Merger Sub shall, and Parent shall cause Merger Sub to, irrevocably accept for purchase, purchase and pay for all Company Shares validly tendered and not properly withdrawn pursuant to the Offer, subject only to: (a) there being validly tendered in the Offer (in the aggregate) and not properly withdrawn prior to the Expiration Date that number of Company Shares that, considered together with the number of Company Shares (if any) then owned by Parent and Merger Sub (and excluding Company Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), equals at least a majority in voting power of the Company Shares then issued and outstanding as of the Expiration Date (the “Minimum Condition”); (b) the Merger Agreement not having been terminated in accordance with its terms (the “Termination Condition”); and (c) the satisfaction, or waiver by Merger Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the “Tender Offer Conditions”).
(b) On or prior to the date that Merger Sub becomes obligated to pay for Company Shares pursuant to the Offer, Parent shall provide or cause to be provided to Merger Sub on a timely basis funds sufficient to purchase and pay for any and all Company Shares that Merger Sub shall become obligated to accept for payment each Share purchase pursuant to the Offer. Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by M▇▇▇▇▇ Sub, of the other Tender Offer Conditions, Merger Sub shall accept for purchase (the time of such acceptance, the “Acceptance Time”) and pay for all Company Shares validly tendered and not properly withdrawn pursuant to the Offer and promptly as soon as practicable following the acceptance of Shares for payment pursuant to Expiration Date, and, in any event, no more than three Business Days after the Offer pay the Expiration Date. The Offer Price (without interest) for payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Company Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only paid to the satisfactionseller in cash, or waiver without interest, subject to any withholding of Taxes required by Parent or Merger Subsidiaryapplicable Law, on the terms and subject to the conditions set forth in this Agreement.
(c) The Offer shall be made by means of each an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with applicable Law and this Agreement, including the Tender Offer Conditions.
(b) . To the extent permitted by applicable Law, Parent and Merger Subsidiary Sub expressly reserves reserve the right to, at any time and from time to time, waive or modify any of the conditions to the Offer, increase the Offer Conditions and Price, or to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without except with the prior consent written approval of the Company Company, Merger Sub shall not (which consent may be granted or withheld by i) decrease the Company in its sole discretion) (A) the Minimum Condition may not be waivedOffer Price, (Bii) no change may be made that changes the form of consideration payable in the Offer (provided that nothing herein shall limit the ability of Parent and Merger Sub to increase the cash consideration payable in the Offer), (iii) reduce the maximum number of Company Shares sought to be paid, decreases the price per Share or the number of Shares sought purchased in the Offer, amends (iv) amend, modify or adds waive the Minimum Condition or the Termination Condition, (v) amend any of the other conditions to the Offer Conditions set forth in Annex I in a manner adverse to the holders of Company Shares, (vi) impose conditions to the Offer that are in addition to the Tender Offer Conditions, (vii) except as provided in Sections 1.1(e) and 1.1(f), terminate, accelerate or amends otherwise modify or amend the Offer to accelerate the Expiration Date, or (viii) otherwise modify or amend any of the other term terms of the Offer in any a manner adverse in any material respect to the stockholders holders of Company Shares.
(d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at 12:00 midnight (Delaware time) on the date that is 20 Business Days following the commencement of the CompanyOffer (determined using Rule 14d-1(g)(3) under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time to which the Offer has been so extended (Cthe Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”).
(e) If on any then scheduled Expiration Date, any of the expiration date conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied or waived by Merger Sub, Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for one or more successive extension periods of up to ten Business Days each in order to permit the satisfaction or waiver of such conditions; provided, however, that Merger Sub shall not be extended except as otherwise provided hereinrequired (and Parent shall not be required to cause Merger Sub) to extend the Offer (i) beyond the Outside Date or (ii) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Article 7. The “Outside Date” shall be May 31, and 2024. In addition, Merger Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff.
(Df) Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Date without the prior written consent of the Company, except if this Agreement has been terminated in the event that accordance with Article 7. If this Agreement is terminated pursuant in accordance with Article 7 prior to Section 11.01. Notwithstanding the foregoingany scheduled Expiration Date, (x) Merger Subsidiary Sub shall (or at the request of the Company, and Parent shall cause Merger Subsidiary Sub to) extend promptly (and in any event within 72 hours following such termination), irrevocably and unconditionally terminate the Offer if at and shall not acquire any Company Shares pursuant thereto. If the scheduled Offer is terminated or extended expiration withdrawn by Merger Sub, or this Agreement is terminated prior to the Acceptance Time, 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 Company Shares to the registered holders thereof and Merger Sub shall not (and Parent shall cause Merger Sub not to) accept any Company Shares pursuant to the Offer.
(g) As soon as practicable on the date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration commencement of the Offer, Merger Subsidiary shall, if requested by the Company, or may, but in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable no event more than ten Business Days after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent and Merger Subsidiary shall, and Sub shall cause its Affiliates to, (i) file with the SEC an amendment SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”). The Schedule TO shall include, which shall include as exhibits, the Offer to Purchase, a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement a form of summary advertisement (collectively, together with any amendments or amendments, supplements and exhibits thereto, the “Offer Documents”), . Parent and (ii) to the extent required by applicable U.S. federal securities laws, Merger Sub shall cause the Offer Documents to be disseminated to holders of SharesCompany Shares as and to the extent required by federal securities Laws, including the Exchange Act. Each of ParentParent and Merger Sub, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first publishedone hand, sent or given to the stockholders of and the Company, on the other hand, 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 promptly notify the statements therein, in light of the circumstances under which they were made, not misleading (except that Parent other party and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents Documents, if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shallrespect or as otherwise required by applicable Law, and Merger Sub shall cause its Affiliates tothe Offer Documents, use their respective reasonable best efforts to cause the Schedule TO as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case Company Shares as and to the extent required by applicable U.S. federal securities lawsthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Parent and Merger Subsidiary Sub shall give reasonable and good faith due consideration to any comments made additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and Merger Subsidiary Sub shall provide the Company and its counsel with copies of any written comments, and a written summary of any oral comments, that Parent and Merger Sub or oral comments Parent, Merger Subsidiary or their respective Affiliates or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, andand any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such responses, subject and Parent and Merger Sub shall give due consideration to the provisions hereofreasonable additions, promptly respond to such commentsdeletions or changes suggested thereto by the Company and its counsel.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex I, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including within ten business days after the date of this Agreement, the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), the Offer. On the terms and subject to the prior satisfaction or waiver of the conditions set forth in Annex I (of the “Offer Conditions”)and this Agreement, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to Purchaser shall accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as all shares of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer as soon as practicable after the Expiration Date and promptly following the acceptance of Shares for payment pursuant to the Offer shall pay the Offer Price (without interest) for each Share validly tendered all such shares of Company Common Stock as soon as practicable after acceptance and not properly withdrawn pursuant to the Offerin compliance with applicable laws. The obligation of Merger Subsidiary (the Parent and of Parent to cause Merger Subsidiary) the Purchaser to accept for payment, payment and pay the Offer Price (without interest) for, each Share for shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, conditions set forth in Annex I to this Agreement (the “Offer Conditions”). The first time that the Purchaser accepts for payment shares of each of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer Conditionsis referred to herein as the “Acceptance Time.”
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended The initial expiration date of the Offer any shall be the 20th business day after commencement of the conditions Offer (determined in accordance with Rules 14d-1(g)(3) and 14d-2 under the Exchange Act) (such date and the time on which the Offer expires on such date, the “Initial Expiration Date”). The Purchaser expressly reserves the right, subject to compliance with the Exchange Act, to waive, amend or modify any term or condition of the Offer in its sole discretion; provided, however, that, without the prior written consent of the Company, the Purchaser shall not:
(i) change the form of consideration payable in the Offer, decrease the Offer Price or decrease the number of shares of Company Common Stock sought pursuant to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied Offer;
(other than conditions which by their nature are to be satisfied on the Acceptance Dateii) or waived; and (y) Merger Subsidiary shall extend the Offer Expiration Date except (A) as required by applicable law (including for any period required by any rule, regulation, interpretation or position of the U.S. United States Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable staff thereof), (B) that if, immediately prior to the Offer; provided that in no event shall Merger Subsidiary be required scheduled Expiration Date, any condition to extend the Offer beyond has not been satisfied or waived, the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or Purchaser may, in its sole discretion, provide a subsequent offering period extend the Expiration Date for one or more periods (“Subsequent Offering Period”not in excess of ten business days each) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of Outside Date, or (C) in connection with an increase in the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment consideration to be paid pursuant to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC so as to comply in all material respects with the 1934 Act and the applicable rules and regulations thereunder and other applicable Law and that of the Offer DocumentsSEC; provided, when filed with the SEC and on the date first publishedhowever, sent or given that, subject to the stockholders right of the Parent and the Purchaser to terminate this Agreement in accordance with Section 9.1, if immediately prior to any scheduled Expiration Date, one or more Offer Conditions have not been satisfied or waived by the Parent or the Purchaser, then at the request of the Company, the Parent shall not contain any untrue statement cause the Purchaser to extend the Expiration Date for one or (as needed) more consecutive periods of a material fact five business days each (or omit to state any material fact required to be stated therein such shorter period as the Company may agree or necessary such longer period as the Company and the Parent may agree) in order to make permit the statements thereinsatisfaction of any such Offer Condition, except that if immediately prior to any scheduled Expiration Date, all Offer Conditions (except the Minimum Condition) have been satisfied or waived by the Parent or the Purchaser, then the Parent’s obligations to extend the Expiration Date shall be limited to causing the Purchaser to extend the Expiration Date for one period of ten business days to permit the satisfaction of the Minimum Condition, and if at the end of such ten business day period, the Minimum Condition continues to not be satisfied, to causing the Purchaser to extend the Expiration Date for one additional period of ten business days to permit the satisfaction of the Minimum Condition, after which, if the Minimum Condition remains unsatisfied, the Purchaser shall not be required to extend the Expiration Date (it being understood that, in light no event, shall the Parent or the Purchaser be required to extend the Expiration Date to a date that is later than the Outside Date notwithstanding anything to the contrary in this Agreement);
(iii) waive or change the Minimum Condition;
(iv) amend any term of the circumstances under which they were made, not misleading (except that Parent and Merger subsidiary shall have no obligation with respect Offer in any manner materially adverse to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The shares of Company and its counsel shall be given a reasonable opportunity to review and comment Common Stock; or
(Av) on the Schedule TO and the Offer Documents each time before impose any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect condition to the Offer Documents promptly, but not set forth in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.Annex I.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate been terminated in accordance with Section 8.1 hereof, as promptly as practical after the date hereof (but in no event later than the tenth (10/th/) Business Day following the public announcement of the execution hereof), the Company and Acquisition Company shall commence the Offer to purchase all of the issued and outstanding Shares (together with all associated shareholder rights) at the Offer Price per Share. The initial expiration date for the Offer shall be the twenty-first (21st) Business Day from and after the date the Offer is commenced, including the date of commencement as the first (1/st/) Business Day in accordance with Rule 13e-4 of the Securities Act of 1934, as amended (the "Exchange Act") (such ------------ initial expiration date as it may be extended in accordance with the terms of this Agreement, the "Expiration Date"). The obligations of the Company and/or --------------- Acquisition Company to accept for payment and to pay for Shares validly tendered on or prior to the Expiration Date and not withdrawn prior to the Expiration Date (the "Tendered Shares") shall be subject only to (i) there being validly --------------- tendered and not withdrawn prior to the expiration of the Offer at least fifty percent (50%) of the outstanding Shares of the Company (including for these purposes Shares issuable upon the exercise of Company Options by Persons who have not entered into Option Exercise/Cancellation Agreements), after giving effect to the Offer Closing and the cancellation of any Tendered Shares acquired by the Company, plus one Share (the "Minimum Condition") and (ii) the other ----------------- conditions set forth in Annex A hereto. The Company and Acquisition Company shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and purchase, as soon as practicable after the Expiration Date, all Tendered Shares. In the event that the number of Tendered Shares, plus the shares issuable upon exercise of the Acquisition Company Option, without duplication, would permit the Merger to be effected pursuant to Section 253 of the DGCL (the "Short Form Condition"), all Tendered Shares shall be purchased by -------------------- Acquisition Company. In the event the Short Form Condition is not satisfied, Tendered Shares having an aggregate purchase price of $90 million (or such greater amount, not to exceed $95.5 million in the aggregate, as may be required for Acquisition Company to own a majority of the outstanding Shares (including for these purposes Shares issuable upon the exercise of Company Options by Persons who have not entered into Option Exercise/Cancellation Agreements) after giving effect to the Offer Closing and the cancellation of any Tendered Shares acquired by the Company, or such greater amount as Acquisition Company may determine in its sole discretion) (the "Capital Contribution") shall be acquired by Acquisition -------------------- Company upon the Offer Closing and, after such acquisition by Acquisition Company, the balance of the Tendered Shares shall be acquired by the Company upon the Offer Closing.
(b) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") containing the terms set forth in this Agreement and ----------------- the conditions set forth in Annex A hereto. Neither the Company nor ------- Acquisition Company shall (i) increase or decrease the Offer Price or change the form of consideration payable pursuant to the Offer, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) amend or waive satisfaction of the conditions set forth in Annex IA attached ------- hereto, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement (iv) impose any additional conditions or amend any other term or condition of the execution of this Agreement, Merger Subsidiary shall amend the Offer to or (iv) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that extend the expiration date of the Offer beyond the initial Expiration Date, in each case without the prior written consent of Parent. The Company and Acquisition Company shall be midnight waive or modify any condition set forth in clause (New York City timev)(a) on (other than in clause (v)(a) with respect to a suit, action or proceeding instituted by any Governmental Entity that seeks to restrain or prohibit the date that is ten Business Days making or consummation of the Offer or the Merger), (for this purpose calculated in accordance with Rule 14d-1(g)(3d) under the Exchange Act) following the filing of such amendment, and (ivf) make such other amendments as are necessary or appropriate to conform to the requirements of this AgreementAnnex A if so ------- requested in writing by Parent. The Offer shall be Company and Acquisition Company agree that, subject to the condition that there shall be validly tendered right of termination set forth in accordance with Section 8.1 (other than Section 8.1(d)(i)), in the terms of event the Company or Acquisition Company are unable to consummate the Offer on or prior to the expiration date Expiration Date due to the failure of any condition set forth in Annex A hereto to be satisfied ------- or waived, the Company and Acquisition Company shall, if requested by Parent, extend the Offer until the earlier of (i) the later of (A) the day which is twenty (20) Business Days after the initial Expiration Date and not withdrawn(B) such later date which is ten (10) Business Days after the Company terminates any third party discussions or negotiations that are permitted by Section 6.7 below, a number of Shares that, together with or (ii) such time as the Shares then owned by Parent Minimum Condition is satisfied and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I A hereto are satisfied or ------- waived; provided, that, the Company shall be permitted but shall not be -------- ---- obligated to extend the Offer if Parent or Acquisition Company is in breach in any material respect of its covenants, agreements, representations or warranties contained in this Agreement. In addition, the Company and Parent agree that the Company and Acquisition Company shall have the right by mutual agreement to no other conditionsextend the offer beyond the initial Expiration Date. In addition to the foregoing, provided that the Company reasonably believes -------- ---- that the Minimum Condition will be satisfied within such ten (10) Business Day period, Parent and Acquisition Company shall, if requested by the Company, extend the Offer until the earlier of (i) the date which is ten (10) Business Days after the initial Expiration Date and (ii) such time as the Minimum Condition is satisfied and the conditions set forth on Annex A ------- hereto are satisfied or waived. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer Agreement and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends the parties shall use their commercially reasonable efforts to take, or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) taken, all actions and to do, or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rulecause to be done, regulationall things necessary, interpretation proper or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market advisable under applicable Laws to consummate the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after on the date hereofthe Offer is commenced, but in no event later than three Business Days following with respect to the public announcement of Offer, the execution of this AgreementCompany and Acquisition Company, Merger Subsidiary shalltogether with such other Persons as shall be required to be included as parties to such filing, and if any, shall cause its Affiliates to, (i) file with the SEC an amendment to Securities and Exchange Commission (the "SEC"), a Transaction Statement on Schedule TO which shall comply with Rule --- 13(e)(3) (together with any amendments and supplements thereto and including the exhibits thereto, the "Schedule TO, which "). The Schedule TO shall include contain or ----------- incorporate by reference the Offer to Purchase and a revised offer to purchase and form of letter of transmittal reflecting and any other documents related to the terms Offer (the Schedule TO, the Offer to Purchase, the letter of transmittal and conditions set forth in this Agreement (collectivelysuch other documents, together with any amendments or and supplements thereto, shall be collectively referred to herein as the “"Offer Documents”"), and (ii) to . The Offer Documents shall comply in all --------------- material respects with the extent required by provisions of applicable U.S. federal securities laws. The Company, Parent and Acquisition Company shall take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to be disseminated to the stockholders of the Company, in each case as and to the extent required by applicable federal securities laws. The Company, Acquisition Company and Parent 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and Company and Acquisition Company shall cause its Affiliates to, use their respective reasonable best efforts take all steps necessary to cause the Schedule TO Offer Documents, as so corrected corrected, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders the stockholders of Sharesthe Company, in each case as and to the extent required by applicable U.S. federal securities laws. The Each of the Company and its counsel counsel, on the one hand, and Parent and Acquisition Company and their counsel, on the other hand, shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and upon the Offer Documents each time before any such document is they are filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC. In addition, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company Parent and its counsel in writing with any written comments or oral comments Parent, Merger Subsidiary other communications that the Company or their respective Affiliates or its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such commentscomments or other communications.
Appears in 1 contract
The Offer. (a) Provided Provided, that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article VIII, as promptly as reasonably practicable after the date hereof, of this Agreement but in no event later than three the tenth (10th) Business Days following Day after the public announcement of date hereof (or such later date as the execution of this Agreementparties may agree in writing), Merger Subsidiary Sub shall, and Parent shall amend the Offer cause Merger Sub to (iand the Company shall cooperate with Parent and Merger Sub to) increase commence (within the purchase price to $6.50 per Share meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the "Exchange Act")) following the filing of such amendment, and Offer.
(ivb) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “"Offer Conditions”"), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the time and date of acceptance for payment, the "Acceptance Time") and promptly following the acceptance of Shares the shares of Company Common Stock for payment pursuant to the Offer Offer, pay (subject to any withholding of Tax pursuant to Section 2.2(g)) the Offer Price (net to the seller in cash, without interest) , for each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary Sub to (and of Parent to cause Merger SubsidiarySub to) to accept for payment, and pay the Offer Price (net to the seller in cash, without interest) for, for each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger SubsidiarySub if permitted hereunder, of each of the Offer Conditions.
(bc) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that contains the terms and conditions of the Offer as set forth in this Agreement, including the Minimum Tender Condition (as defined in Annex I). Parent and Merger Subsidiary Sub expressly reserves reserve the right (but shall not be obligated), at any time and from time to time in their sole discretion, to waive any of the Offer Conditions and Conditions, to make increase the Offer Price or to modify or amend any other changes terms and conditions of the Offer; provided, that without the written consent of the Company, Parent and Merger Sub shall not (A) decrease the Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose additional conditions on the consummation of the Offer, (E) amend or modify any of the Offer Conditions in a manner that adversely affects any holder of shares of Company Common Stock, (F) change or waive the Minimum Tender Condition (or HSR Approval component of the Governmental Approval Condition), (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(e) of this Agreement or (H) otherwise amend or modify the Offer in a manner that adversely affects, any holder of shares of Company Common Stock. The failure by Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each right shall be deemed an ongoing right that may be asserted at any time and from time to time.
(d) Unless extended pursuant to and in accordance with the terms of or conditions to this Agreement, the Offer; provided Offer shall expire at midnight, New York time, on the date that without is twenty (20) Business Days (determined for this purpose in accordance with Rule 14d-1(g)(3) under the prior consent Exchange Act) following the commencement of the Company Offer (the "Initial Expiration Date") or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which consent may the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Offer has been extended pursuant to and in accordance with this Agreement, the "Expiration Date").
(e) The Offer shall be granted extended from time to time as follows:
(i) If at any then scheduled Expiration Date, any of the Offer Conditions set forth in clauses (a), (b) or withheld (c)(i) of Annex I hereto shall not have been satisfied or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall (and Parent shall cause Merger Sub to), if so requested by the Company in its sole discretiona written notice delivered to Parent on or prior to the scheduled Expiration Date, extend the Offer for one or more successive periods of up to ten (10) Business Days each, in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent and Merger Sub to waive any Offer Condition (other than the Minimum Tender Condition or the requirement for HSR Approval that is a component of the Governmental Approval Condition) in accordance with this Agreement); provided, that such extension of the Offer does not extend past the earlier of (A) the Minimum Condition may not be waived, termination of this Agreement pursuant to Article VIII and (B) no change January 31, 2013 (which date may be made that changes extended at the form discretion of consideration either the Company or Parent to not later than March 31, 2013, in the event the Governmental Approval Condition shall not have been satisfied as of such date) (the "Outside Date");
(ii) Merger Sub may, at its sole discretion, extend the Offer for one or more successive periods of up to ten (10) Business Days each, the length of each such period to be paiddetermined by Parent at its sole discretion, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the permit any Offer Conditions or amends any other term to be satisfied; provided, that such extension of the Offer in shall not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) the Outside Date; and
(iii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any manner adverse period or periods required by applicable Law, by interpretation or position of the Securities and Exchange Commission (the "SEC") or its staff or by the New York Stock Exchange ("NYSE") that is applicable to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Offer. Merger Subsidiary Sub shall not terminate the Offer prior to any scheduled expiration date Expiration Date (including any rescheduled Expiration Date) without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. Nothing in this Section 11.01. Notwithstanding 1.1 shall affect any of the foregoingtermination rights set forth in Article VIII.
(f) If fewer than ninety percent (90%) of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to the Offer, (x) Parent and Merger Subsidiary shall (or Sub may, and at the request of the CompanyCompany shall, and upon any such request by the Company Parent shall cause the Merger Subsidiary Sub to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a for one "subsequent offering period period" (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 of under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary shall, Sub shall (and Parent shall cause it Merger Sub to, ) promptly after any Company Common Stock is validly tendered during a "subsequent offering period" (or any extension thereof) accept for payment payment, and pay (subject to any withholding of Tax pursuant to Section 2.2(g)) the Offer Price net to the seller in cash, without interest, for, as each share of Company Common Stock that is validly tendered during such "subsequent offering period" or any extension thereof promptly as practicable after any such share of Company Common Stock is tendered during any such period. The Offer Documents will provide for the expiration possibility of a "subsequent offering period" in a manner consistent with the terms of this Section 1.1(f).
(g) In the event that this Agreement is terminated pursuant to Article VIII prior to the Acceptance Time, Merger Sub shall (and Parent shall cause Merger Sub to) (i) within one (1) Business Day of such termination, terminate the Offer, all Shares (1ii) validly tendered and not withdrawn acquire any shares of Company Common Stock pursuant to the Offer and (2iii) validly cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered in shares of Company Common Stock to the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)registered holders thereof.
(ch) As promptly as practicable after On the date hereof, but in no event later than three Business Days following the public announcement of the execution commencement of this Agreementthe Offer, Parent and Merger Subsidiary shall, Sub shall prepare and shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the "Schedule TO") that will contain or incorporate by reference the Offer to Purchase, which shall include a revised offer to purchase the summary advertisement and form of the related letter of transmittal reflecting (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto and including exhibits thereto, the “"Offer Documents”"), . Parent and (ii) to the extent required by applicable U.S. federal securities laws, Merger Sub shall as promptly as practicable cause the Offer Documents to be disseminated to holders of Sharesthe shares of Company Common Stock in accordance with and to the extent required by Rule 14d-4 under the Exchange Act. Each of Parent, Parent and Merger Subsidiary and the Company agrees Sub agree that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC by either Parent or Merger Sub to comply in all material respects with the 1934 Exchange Act and the rules and regulations thereunder and other applicable Law Laws. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub and Parent's counsel all information concerning the Company, the Company's Subsidiaries and the Company's shareholders that may be required in connection with any action contemplated by this Section 1.1(h), including such information required by applicable Laws to be set forth in the Offer Documents. No filing of, when filed with or amendment or supplement to, the SEC Offer Documents will be made by Parent or Merger Sub, without providing the Company and on the date first published, sent or given its counsel a reasonable opportunity to review and comment thereon and giving due consideration to such comments. If at any time prior to the stockholders of Acceptance Time or during any "subsequent offering period" (or extension thereof) any information relating to the Company, shall Parent, Merger Sub, or any of their respective Affiliates, directors or officers should be discovered by any of the parties hereto, which should be set forth in an amendment or a supplement to the Offer Documents so that such documents would not contain include any untrue statement misstatement 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 misleading, the party that discovers such information shall promptly notify the other parties hereto, and Parent and Merger subsidiary Sub shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed file with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesan appropriate amendment or supplement describing such information and, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel Law, shall be given a reasonable opportunity disseminate such amendment or supplement to review and comment (A) on the Schedule TO and shareholders of the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselCompany. Parent and Merger Subsidiary Sub shall provide notify the Company and its counsel with promptly of the receipt of any comments, whether written or oral, from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Offer Documents or for additional information, and shall promptly supply the Company with copies of all correspondence (including a description of any oral comments communications) between Parent, Merger Subsidiary Sub or any of their respective Affiliates or counsel may receive from Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after Documents. Each of Parent and Merger Sub shall respond promptly to any comments of the receipt of such comments, and, subject SEC or its staff with respect to the provisions hereofOffer Documents.
(i) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, promptly respond and pay for, pursuant to such commentsthe Offer.
Appears in 1 contract
Sources: Merger Agreement (Cascade Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been validly terminated in Annex Iaccordance with Section 11.01, as promptly as practicable (and in any event within 10 days) after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act▇▇▇▇ ▇▇▇) following the filing of such amendment, Offer. Merger Subsidiary’s obligation to accept for payment and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be pay for Shares validly tendered in accordance with the terms and not properly withdrawn Table of Contents pursuant to the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together thereof (as it may be extended from time to time in accordance with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including ) shall be subject solely to the prior satisfaction or waiver (if permitted hereunder) of the conditions set forth in Annex I hereto (the “Offer Conditions”), promptly after ) and shall not be subject to the later satisfaction of (x) the earliest any other conditions. The date as of on which Merger Subsidiary commences the Offer is permitted under applicable Law referred to accept for payment Shares tendered as the “Offer Commencement Date”. Merger Subsidiary shall not (and Parent shall not permit Merger Subsidiary to) terminate or otherwise withdraw the Offer unless and until this Agreement has been validly terminated pursuant to and in accordance with Section 11.01. In the Offer event that this Agreement is validly terminated pursuant to and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiaryin accordance with Section 11.01, Merger Subsidiary shall promptly (and Parent shall cause Merger Subsidiary toin any event within one Business Day after the date of such termination) consummate terminate and withdraw the Offer in accordance with its terms and and, notwithstanding the satisfaction or waiver of any Offer Conditions, shall not accept for payment each Share validly or pay for any Shares theretofore tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to in the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and and, prior to the expiration of the Offer, to make any other changes change in the terms of or conditions to the Offer; provided that notwithstanding the foregoing, without the prior written consent of the Company Company, Merger Subsidiary shall not:
(which consent may be granted i) impose conditions on Merger Subsidiary’s obligation to accept for payment and pay for Shares validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer, other than the Offer Conditions;
(ii) waive or withheld by the Company in its sole discretion) (A) change the Minimum Condition may not be waived, (Bas defined in Annex I);
(iii) no decrease the Offer Price;
(iv) change may be made that changes the form of consideration to be paid, decreases paid in the price per Share or Offer;
(v) decrease the number of Shares sought in the Offer, amends ;
(vi) extend or adds to otherwise change the Offer Conditions or amends any other term expiration date of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein; or
(vii) amend or modify any of the Offer Conditions or amend or modify any of the terms of the Offer, and (D) in either case in a manner that broadens any of the Offer Conditions, would require Merger Subsidiary shall not terminate to extend the Offer prior or is otherwise materially adverse to any scheduled expiration the holders of the Shares (in their capacity as such).
(c) Unless extended as provided in this Agreement, the Offer shall expire on the date except that is twenty business days (calculated as set forth in Rule 14d-1(g)(3) under the event that this Agreement is terminated pursuant to Section 11.01▇▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, (x) unless this Agreement shall have been validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall (or at the request of the Company, and Parent shall cause Merger Subsidiary to) extend the Offer if (i) for successive extension periods of reasonable duration if, at the scheduled or extended expiration date of the Offer (as it may be extended from time to time in accordance with this Agreement), any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from time to time until such conditions Offer Conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; , and (yii) Merger Subsidiary shall extend the Offer for any period required by any applicable rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market applicable to the Offerstaff thereof or NASDAQ or any period otherwise required by Applicable Law; provided that in no event shall Merger Subsidiary shall not be required to extend the Offer beyond (x) the End Date unless Parent or (y) the date that is 60 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Subsidiary. If all of the Offer Conditions have been satisfied or waived prior to the expiration of the Offer, and Merger Subsidiary is permitted by Applicable Law to accept for payment and pay for all Shares that have been validly tendered and not then permitted to terminate this Agreement properly withdrawn pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond prior to the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period shall not (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it not permit Merger Subsidiary to) extend the Offer for any reason without the prior written consent of the Company. In the event that, accept for payment and pay for, as promptly as practicable after following the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.Merger
Appears in 1 contract
Sources: Merger Agreement (Avocent Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 9.1, as promptly as practicable after the date hereof, possible but in no event later than three Business Days following five (5) business days after the public announcement of the execution hereof by the parties, Parent and GP shall cause Acquisition to commence (within the meaning of this AgreementRule 14d-2 under the Securities Exchange Act of 1934, Merger Subsidiary as amended (the "Exchange Act"), the Offer; and to cause Acquisition to use its best efforts to consummate the Offer, including, without limitation, engaging an information agent in connection therewith. Acquisition shall amend accept for payment issued and outstanding shares of common stock, $0.001 par value of the Company (individually a "Share" and collectively, the "Shares") together with the associated Rights which have been validly tendered and not withdrawn pursuant to the Offer to (i) increase at the purchase price to $6.50 per Share (earliest time following expiration of the “Offer Price”), net to the seller in cash, (ii) provide that the all conditions to the Offer shall be as set forth in Annex I have been satisfied or waived by Acquisition. The obligation of Acquisition to accept for payment, purchase and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (pay for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform Shares tendered pursuant to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be the number of Shares validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawnOffer, a number of Shares that, together combined with the Shares then already owned by Parent and its AffiliatesParent, represents GP, Acquisition or any of their affiliates, constitutes at least a majority of the total number of then outstanding Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then basis (including for purposes of such calculation all Shares issuable upon exercise of all vested and exercisable unvested stock options, and conversion of convertible securities or other rights to purchase or acquire Shares) at the expiration of the Offer (the “"Minimum Stock Condition”") and to the other conditions set forth in Annex I and to no other conditionsArticle 7. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Acquisition expressly reserves the right to waive any of such condition, to increase the Offer Conditions Per Share Amount, and to make any other changes in the terms and conditions of or conditions to the Offer; provided provided, however, that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waivedParent, (B) GP and Acquisition agree that no change may be made that without the written consent of the Company which decreases the Per Share Amount, which changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, which reduces the maximum number of shares to be purchased in the Offer, which reduces the Minimum Stock Condition to below a majority of the then outstanding shares (on a fully-diluted basis), which otherwise modifies or amends or adds the conditions to the Offer Conditions or amends any other term of the Offer in any a manner that is materially adverse to the stockholders holders of the CompanyShares, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate which 7 imposes conditions to the Offer prior in addition to any scheduled expiration date except those set forth in Article 7 or which extends the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any beyond September 30, 1999 (except that Acquisition may extend the expiration date of the conditions Offer beyond September 30, 1999 as required to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by comply with any rule, regulation, regulation or interpretation or position of the U.S. Securities and Exchange Commission or to provide the time necessary to satisfy the conditions set forth in Article 7). It is agreed that the conditions set forth in Article 7 are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of the circumstances giving rise to any such condition (the “SEC”including any action or inaction by Acquisition) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary may be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)waived by Acquisition, in which case Merger Subsidiary shall be required whole or in part at any time and from time to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or maytime, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 . The failure by Acquisition at any time to exercise any of the 1934 Actforegoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. Subject The Per Share Amount shall be paid net to the foregoingseller in cash, including the requirements less any required withholding of Rule 14d-11taxes, and upon the terms and subject to the such conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after . The Company agrees that no Shares held by the expiration Company or any of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly its subsidiaries will be tendered in the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(cb) As promptly soon as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this AgreementParent, Merger Subsidiary shallGP and Acquisition agree that Parent, GP and Acquisition shall cause its Affiliates to, (i) file with the SEC an amendment Securities and Exchange Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Schedule TOOffer, which shall include a revised an offer to purchase and form of transmittal letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectively, together with any amendments thereof or supplements thereto, collectively the “"Offer Documents”"), . The Company and (ii) its counsel shall be given a reasonable opportunity to the extent required by applicable U.S. federal securities laws, cause review and comment on the Offer Documents prior to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them their filing with the SEC or dissemination to the stockholders of the Company. Parent and Acquisition agree to provide the Company and its counsel with any comments which Parent, Acquisition or their counsel may receive from the SEC or the staff of the SEC with respect to such documents promptly after receipt thereof. The Offer Documents will comply in all material respects with the 1934 Act provisions of applicable federal securities laws. The information provided and the rules to be provided by Parent, GP and regulations thereunder and other applicable Law and that Acquisition for use in the Offer DocumentsDocuments shall not, when on the date filed with the SEC and on the date first published, published or sent or given to the stockholders of Company's stockholders, as the Companycase may be, shall not contain any untrue statement of a material fact or nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (except misleading, provided, however, that Parent and Merger subsidiary shall have no obligation representation or warranty is made by Parent, GP or Acquisition with respect to any information in the Offer Documents supplied by the Company or any of its Representatives stockholders for inclusion in writing)the Offer Documents. Each The Company agrees that information provided by the Company or any of its subsidiaries for inclusion or incorporation in the Offer Documents shall not, on the date filed with the SEC and on the date first published or sent or given to the Company's stockholders, as the case may be, contain any untrue statement of a material fact nor omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent, Merger Subsidiary GP, Acquisition and the Company agrees each agree promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shallrespect and Parent, GP and shall cause its Affiliates to, use their respective reasonable best efforts Acquisition further agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such comments, and, subject to the provisions hereof, promptly respond to such comments.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Section 7.1, as promptly as practicable (and in any event within 10 business days) after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary Purchaser shall amend (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer to (i) increase purchase for cash all Shares at the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, .
(iib) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later latest of (xi) the earliest date as of which Merger Subsidiary Purchaser is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and Offer, (yii) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger SubsidiaryPurchaser, Merger Subsidiary and (iii) the Expiration Date, Purchaser shall (and Parent shall cause Merger Subsidiary Purchaser to) consummate the Offer in accordance with its terms and terms, accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer Offer, and promptly following the acceptance of Shares for payment pursuant to the Offer Offer, pay the Offer Price (without interest) for for, each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary Purchaser (and of Parent to cause Merger SubsidiaryPurchaser) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be is subject to, and only to to, the satisfaction, or waiver by Parent or Merger SubsidiaryPurchaser, of each of the Offer Conditions.
(bc) Merger Subsidiary The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition (as defined in Annex I) and the other conditions set forth in Annex I. Purchaser expressly reserves the right to (x) increase the Offer Price and (y) waive any of the Offer Conditions Condition and to make any other changes in the terms and conditions of or conditions to the Offer; provided, however, that unless otherwise provided that by this Agreement, without the prior written consent of the Company Company, Purchaser shall not (which consent may be granted or withheld by i) decrease the Company in its sole discretion) (A) the Minimum Condition may not be waivedOffer Price, (Bii) no change may be made that changes the form of consideration to be paidpayable in the Offer, decreases (iii) decrease the price per Share or the maximum number of Shares sought to be purchased in the Offer, amends (iv) impose conditions or adds requirements to the Offer in addition to the Offer Conditions or amends amend or modify any other term of the Offer Conditions in a manner that adversely affects, or reasonably could adversely affect, the holders of Shares, (vi) change or waive the Minimum Condition, or (vii) extend or otherwise change the expiration date of the Offer in a manner other than as required or permitted by this Agreement.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at 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) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date to which the Offer has been so extended (the Initial Expiration Date, or such later date to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on or prior to any manner adverse to then scheduled Expiration Date, the stockholders only Offer Conditions that have not been satisfied, or waived by Parent or Purchaser if permitted hereunder, are the Minimum Condition, the HSR Condition (as defined in Annex I), and/or the Trading Suspension Condition (as defined in Annex I), then Purchaser shall (and Parent shall cause Purchaser to), at the request of the Company, extend the Offer for one or more successive periods of not more than 10 business days each in order to permit the satisfaction of such conditions, provided such extension of the Offer period does not extend past the earlier of (Cx) the expiration date termination of this Agreement pursuant to Section 7.1 and (y) the date, as applicable, that is (A) 120 days after commencement of the Offer (the “Initial Outside Date”), or (B) 210 days after commencement of the Offer in the event that the HSR Condition shall not be extended except as have been satisfied, or waived by Parent or Purchaser if permitted hereunder, by the Initial Outside Date (the “Extended Outside Date”);
(ii) Purchaser may, in its sole discretion, extend the Offer for one or more successive periods of not more than 10 business days each, if at any otherwise provided hereinscheduled Expiration Date any of the Offer Conditions shall not have been satisfied, or waived by Parent or Purchaser if permitted hereunder, until the termination of this Agreement pursuant to Section 7.1; and
(iii) Purchaser shall extend the Offer for any period or periods required by applicable law, rule, regulation, interpretation or position of the Securities and Exchange Commission (“SEC”) or its staff or The NASDAQ Stock Market LLC (the “NASDAQ”) or its staff, until the termination of this Agreement pursuant to Section 7.1.
(f) Purchaser may, in its sole discretion, provide for one “subsequent offering period” (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange Act. Additionally, in the event that more than 80% of the then outstanding Shares have been validly tendered and not properly withdrawn pursuant to the Offer following the Expiration Date, Purchaser shall (and Parent shall cause Purchaser to), at the request of the Company, provide for one “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of at least 10 business days immediately following the Expiration Date unless (i) Parent and Purchaser exercise the Top-Up Option or (ii) Parent, Purchaser and their respective Subsidiaries, in the aggregate, own more than 90% of the outstanding Shares. Subject to the terms and conditions of this Agreement and the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay the Offer Price (Dwithout interest) Merger Subsidiary for, each Share that is validly tendered pursuant to the Offer during such “subsequent offering period” promptly after each such Share is tendered during such “subsequent offering period.” The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f).
(g) Purchaser shall not terminate the Offer prior to any scheduled expiration date Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding 7.1.
(h) In the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided event that in no event shall Merger Subsidiary be required to extend the Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement is terminated pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject 7.1 prior to the foregoingAcceptance Time, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, Purchaser shall (and Parent shall cause it Purchaser to) promptly (and in any event within 24 hours of such termination), accept for payment irrevocably and pay for, as promptly unconditionally terminate the Offer and shall not acquire any Shares pursuant to the Offer.
(i) As soon as practicable after the expiration commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), all Shares Parent and Purchaser shall file with the SEC, pursuant to Rule 14d-3 and Regulation M-A under the Exchange Act (1) validly tendered and not withdrawn pursuant “Regulation M-A”), a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and (2) validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentexhibits thereto, the “Acceptance DateSchedule TO”).
(c) As promptly . The Schedule TO shall include, as practicable after exhibits, the date hereofOffer to Purchase, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting and summary advertisement, and other ancillary documents and instruments pursuant to which the terms and conditions set forth in this Agreement Offer will be made (collectively, together with any amendments or and supplements thereto, and together with the Schedule TO and any amendments and supplements thereto, the “Offer Documents”). The Company will provide to Parent and Purchaser any information with respect to itself and its officers, directors and (ii) Affiliates required to be provided in the extent required Offer Documents under applicable Laws or as reasonably requested by applicable U.S. federal securities laws, Parent and Purchaser. Parent and Purchaser agree to take all steps necessary to cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by the Exchange Act. Parent and Purchaser, on the one hand, and the Company, on the other hand, agree to promptly correct any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect or as otherwise required by applicable U.S. federal securities lawsLaw. Parent and Purchaser further agree to take all steps necessary to cause the Offer Documents, as so corrected (if applicable), to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is they are filed with the SEC after SEC, and Parent and Purchaser shall give due consideration to all the date hereof reasonable additions, deletions or changes suggested thereto by the Company and (B) on its counsel. In addition, Parent and Purchaser shall provide the Company and its counsel with copies of any correspondence with written comments, and shall inform them of any oral comments, that Parent, Purchaser or their counsel may receive from time to time from the SEC (including comment response letters) concerning or its staff with respect to the Offer or the Offer DocumentsDocuments promptly after receipt of such comments, and Merger Subsidiary any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses before they are submitted to the SEC or its staff, and Parent and Purchaser shall give reasonable and good faith due consideration to any comments made all reasonable additions, deletions or changes suggested thereto by the Company and its counsel. Parent and Merger Subsidiary Purchaser shall provide the Company and its counsel with respond promptly to any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from of the SEC or its staff with respect to the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents promptlyof the Company Board Recommendation, but as such Company Board Recommendation may be amended and for so long as such Company Board Recommendation is not withdrawn (in no event later than twenty-four hourseach case as permitted by this Agreement). If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of Shares in the Offer, Purchaser shall promptly return, and shall cause any depository, acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof.
(j) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Stock occurring on or after the receipt of such commentsdate hereof and prior to Purchaser’s acceptance for payment of, andand payment for, subject Shares pursuant to the provisions hereofOffer.
(k) Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, promptly respond and shall cause Purchaser to such commentsperform, on a timely basis, all of Purchaser’s obligations under this Agreement.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been validly terminated in Annex Iaccordance with Section 11.01, as promptly as practicable (and in any event within 10 days) after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend commence (within the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date meaning of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) 14d-2 under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x1▇▇▇ ▇▇▇) the earliest date as of which Offer. Merger Subsidiary is permitted under applicable Law Subsidiary’s obligation to accept for payment and pay for Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant prior to the Offer pay expiration date thereof (as it may be extended from time to time in accordance with the Offer Price (without interestterms of this Agreement) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only solely to the satisfaction, satisfaction or waiver by Parent or Merger Subsidiary, of each (if permitted hereunder) of the conditions set forth in Annex I hereto (the “Offer Conditions”) and shall not be subject to the satisfaction of any other conditions. The date on which Merger Subsidiary commences the Offer is referred to as the “Offer Commencement Date”. Merger Subsidiary shall not (and Parent shall not permit Merger Subsidiary to) terminate or otherwise withdraw the Offer unless and until this Agreement has been validly terminated pursuant to and in accordance with Section 11.01. In the event that this Agreement is validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall promptly (and in any event within one Business Day after the date of such termination) terminate and withdraw the Offer and, notwithstanding the satisfaction or waiver of any Offer Conditions, shall not accept for payment or pay for any Shares theretofore tendered in the Offer.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and and, prior to the expiration of the Offer, to make any other changes change in the terms of or conditions to the Offer; provided that notwithstanding the foregoing, without the prior written consent of the Company Company, Merger Subsidiary shall not:
(which consent may be granted i) impose conditions on Merger Subsidiary’s obligation to accept for payment and pay for Shares validly tendered and not properly withdrawn pursuant to the Offer prior to the expiration of the Offer, other than the Offer Conditions;
(ii) waive or withheld by the Company in its sole discretion) (A) change the Minimum Condition may not be waived, (Bas defined in Annex I);
(iii) no decrease the Offer Price;
(iv) change may be made that changes the form of consideration to be paid, decreases paid in the price per Share or Offer;
(v) decrease the number of Shares sought in the Offer, amends ;
(vi) extend or adds to otherwise change the Offer Conditions or amends any other term expiration date of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein; or
(vii) amend or modify any of the Offer Conditions or amend or modify any of the terms of the Offer, and (D) in either case in a manner that broadens any of the Offer Conditions, would require Merger Subsidiary shall not terminate to extend the Offer prior or is otherwise materially adverse to any scheduled expiration the holders of the Shares (in their capacity as such).
(c) Unless extended as provided in this Agreement, the Offer shall expire on the date except that is twenty business days (calculated as set forth in Rule 14d-1(g)(3) under the event that this Agreement is terminated pursuant to Section 11.011▇▇▇ ▇▇▇) after the Offer Commencement Date. Notwithstanding the foregoing, (x) unless this Agreement shall have been validly terminated pursuant to and in accordance with Section 11.01, Merger Subsidiary shall (or at the request of the Company, and Parent shall cause Merger Subsidiary to) extend the Offer if (i) for successive extension periods of reasonable duration if, at the scheduled or extended expiration date of the Offer (as it may be extended from time to time in accordance with this Agreement), any of the conditions to the Offer Conditions shall not be have been satisfied or waived, from time to time until such conditions Offer Conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; , and (yii) Merger Subsidiary shall extend the Offer for any period required by any applicable rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market applicable to the Offerstaff thereof or NASDAQ or any period otherwise required by Applicable Law; provided that in no event shall Merger Subsidiary shall not be required to extend the Offer beyond (x) the End Date unless Parent or (y) the date that is 60 days after the date that all of the Offer Conditions (other than the Minimum Condition and those that by their nature are to be satisfied at the expiration of the Offer) have been satisfied or, to the extent permissible, have been waived by Merger Subsidiary. If all of the Offer Conditions have been satisfied or waived prior to the expiration of the Offer, and Merger Subsidiary is permitted by Applicable Law to accept for payment and pay for all Shares that have been validly tendered and not then permitted to terminate this Agreement properly withdrawn pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond prior to the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by shall not (and Parent shall not permit Merger Subsidiary to) extend the Offer for any reason without the prior written consent of the Company. In the event that, or following the expiration of the Offer and Merger Subsidiary’s acceptance for payment of all Shares validly tendered and not properly withdrawn pursuant to the Offer, Parent and Merger Subsidiary are unable to effect the Merger pursuant to the short form merger procedures set forth in Section 253 of the Delaware Law, Merger Subsidiary may, in its sole discretion, provide for a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. .
(d) Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject conditions set forth in this Agreement and to the conditions satisfaction or waiver of the OfferOffer Conditions, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable (i) after the expiration of the Offer, all Shares (1) validly tendered and not properly withdrawn pursuant to the Offer (the date on which and time at which Shares are first accepted for payment under the Offer, the “Acceptance Date”) and (2ii) all Shares validly tendered in the Subsequent Offering Period (the date on which Shares are first accepted for paymentPeriod, the “Acceptance Date”)if any.
(ce) As promptly soon as practicable after on the date hereofOffer Commencement Date, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent and Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment 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, which ”) that shall include the summary term sheet required thereby and, as exhibits, the Offer to Purchase, a revised offer to purchase and form of letter of transmittal reflecting the terms transmittal, summary advertisement and conditions set forth in this Agreement other customary documents, letters and other instruments (collectively, together with any amendments or supplements thereto, the “Offer Documents”), ) and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of SharesShares to the extent required by applicable federal securities laws, applicable rules or regulations of NASDAQ or any other Applicable Laws. Each of Parent and Merger Subsidiary shall cause the Schedule TO and the Offer Documents to comply in all material respects with the requirements of the 1934 Act and all other Applicable Laws. The Company shall furnish Parent and Merger Subsidiary all information concerning the Company required by the 1934 Act to be set forth in the Schedule TO and the Offer Documents. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause promptly to correct any information provided by it for use in the Schedule TO and the other Offer Documents filed by if and to the extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. In addition, if at any time prior to the expiration of the Offer, any information relating to the Offer, the Merger, Parent, Merger Subsidiary, the Company or any of them with their respective Affiliates is discovered by Parent, Merger Subsidiary or the SEC Company which should be set forth in an amendment or supplement to comply in all material respects with the 1934 Act Schedule TO or the Offer Documents so that the Schedule TO and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 are made, not misleading (except misleading, the party that discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC. Parent and Merger subsidiary Subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO TO, as so corrected corrected, amended or supplemented, to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws, applicable rules or regulations of any stock exchange or any other Applicable Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof SEC, and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, Parent and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (i) any comments or other communications, whether written or oral comments oral, that Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such commentsthose comments or other communications and prior to responding to them, andand (ii) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), subject to including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the provisions hereof, promptly respond to such commentsSEC.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth been terminated in Annex Iaccordance with Article VIII, as promptly as reasonably practicable after the date hereof, of this Agreement but in no event later than three Business Days following ten business days after the public announcement of the execution date of this Agreement, Merger Subsidiary Sub shall, and Parent shall amend the Offer cause Merger Sub to (iand the Company shall cooperate with Parent and Merger Sub to) increase commence (within the purchase price to $6.50 per Share meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Offer PriceExchange Act”), net to ) the seller in cash, Offer.
(iib) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary Sub shall (and Parent shall cause Merger Subsidiary Sub to) consummate the Offer in accordance with its terms and accept for payment each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer (the time and date of acceptance for payment, the “Acceptance Time”) and promptly following the acceptance of Shares the shares of Company Common Stock for payment pursuant to the Offer Offer, pay (subject to any withholding of Tax pursuant to Section 1.01(i) or Section 2.02(g)) the Offer Price (net to the seller in cash, without interest) , for each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary Sub to (and of Parent to cause Merger SubsidiarySub to) to accept for payment, and pay the Offer Price (net to the seller in cash, without interest) , for, each Share share of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger SubsidiarySub if permitted hereunder, of each of the Offer Conditions.
(bc) Merger Subsidiary expressly reserves The Offer shall be made by means of an offer to purchase (the right “Offer to waive any Purchase”) that contains the terms and conditions of the Offer Conditions as set forth in this Agreement, including the Minimum Tender Condition (as defined in Annex I) and the other conditions set forth in Annex I. Parent and Merger Sub expressly reserve the right (in their sole discretion) to (i) increase the Offer Price, (ii) waive, in whole or in part, any Offer Condition and (iii) make any other changes in the terms and conditions of or conditions to the Offer; provided that that, unless otherwise provided by Section 1.01(k), without the prior written consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent and Merger Sub shall cause Merger Subsidiary tonot (A) extend decrease the Offer if at Price, (B) change the scheduled form of consideration payable in the Offer, (C) decrease the number of shares of Company Common Stock sought to be purchased in the Offer, (D) impose additional conditions on the consummation of the Offer, (E) amend or extended expiration date modify any of the Offer Conditions in a manner that adversely affects any holder of shares of Company Common Stock, (F) change or waive the conditions Minimum Tender Condition, (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.01(e) of this Agreement or (H) otherwise amend or modify the Offer in a manner that adversely affects any holder of shares of Company Common Stock.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall not expire at midnight, New York time, on the date that is 20 business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”).
(e) The Offer shall be satisfied or waived, extended from time to time until such conditions are as follows:
(i) If on or prior to any then scheduled Expiration Date, any of the Offer Conditions shall not have been satisfied (other than conditions which by their nature are to be satisfied on at the Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for one or more successive periods of up to 10 business days each in order to permit the satisfaction of such conditions (subject to the right of Parent and Merger Sub to waive any condition (other than the Minimum Tender Condition) in accordance with this Agreement); provided that, such extension of the Offer does not extend past the earlier of (A) the termination of this Agreement pursuant to Article VIII and (B) December 31, 2012 (the “Outside Date”);
(ii) If, within five business days prior to any then scheduled Expiration Date, the Company receives a Company Competing Proposal (or waived; a revision to a previously received Company Competing Proposal), then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer so that the Expiration Date does not occur until the later of (x) the date that is 5 business days following the date of the Company’s initial receipt of such Acquisition Proposal (or such revision to a previously received Acquisition Proposal) and (y) the first business day following the expiration of the applicable Notice Period related to such Acquisition Proposal (or such revision to a previously received Acquisition Proposal); provided, that such extension of the Offer shall not extend past the termination of this Agreement pursuant to Article VIII; provided, further, that Merger Subsidiary Sub shall only be required to provide for one such extension of the Offer pursuant to this Section 1.01(e)(ii); and
(iii) Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer for any period or periods required by any ruleapplicable Law, regulation, by interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) or its staff or by the Nasdaq Global Market New York Stock Exchange (“NYSE”) applicable to the Offer; provided that in no event . Merger Sub shall Merger Subsidiary be required to extend not terminate the Offer beyond prior to any scheduled Expiration Date (including any rescheduled Expiration Date) without the End Date unless Parent or Merger Subsidiary is not then permitted to terminate prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article VIII. Nothing in this Section 11.01(b)(i), 1.01 shall affect any of the termination rights set forth in which case Merger Subsidiary shall be required Article VIII.
(f) If fewer than 90% of the number of outstanding shares of Company Common Stock are accepted for payment pursuant to extend the Offer beyond the End Date. Following expiration of the Offer, Parent and Merger Subsidiary Sub may, and at the request of the Company shall, if requested and upon any such request by the Company, or may, in its sole discretionCompany Parent shall cause the Merger Sub to, provide a for one “subsequent offering period period” (“Subsequent Offering Period”and one or more extensions thereof) in accordance with Rule 14d-11 of under the 1934 Exchange Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of this Agreement and the Offer, Merger Subsidiary shall, Sub shall (and Parent shall cause it Merger Sub to, ) promptly after any Company Common Stock is validly tendered during a “subsequent offering period” (or any extension thereof) accept for payment payment, and pay (subject to any withholding of Tax pursuant to Section 1.01(i) or Section 2.02(g)) the Offer Price net to the seller in cash, without interest, for, as each share of Company Common Stock that is validly tendered during such “subsequent offering period” or any extension thereof promptly as practicable after any such share of Company Common Stock is tendered during any such period. The Offer Documents will provide for the expiration possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.01(f).
(g) In the event that this Agreement is terminated pursuant to Article VIII, Merger Sub shall (and Parent shall cause Merger Sub to) (i) within one business day of such termination, terminate the Offer, all Shares (1ii) validly tendered and not withdrawn acquire any shares of Company Common Stock pursuant to the Offer and (2iii) validly cause any depository acting on behalf of Merger Sub to return, in accordance with applicable Law, all tendered in shares of Company Common Stock to the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)registered holders thereof.
(ch) As promptly as practicable after on the date hereof, but in no event later than three Business Days following the public announcement of the execution commencement of this Agreementthe Offer, Parent and Merger Subsidiary shall, Sub shall prepare and shall cause its Affiliates to, (i) file with the SEC an amendment 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 will contain or incorporate by reference the Offer to Purchase, which shall include a revised offer to purchase the summary advertisement and form of the related letter of transmittal reflecting (such Schedule TO and the terms and conditions set forth in this Agreement (collectivelydocuments included therein pursuant to which the Offer will be made, together with any amendments or and supplements thereto and including exhibits thereto, the “Offer Documents”), . Parent and (ii) to the extent required by applicable U.S. federal securities laws, Merger Sub shall as promptly as practicable cause the Offer Documents to be disseminated to holders of Sharesthe shares of Company Common Stock in accordance with and to the extent required by Rule 14d-4 under the Exchange Act. Each of Parent, Parent and Merger Subsidiary and the Company agrees Sub agree that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC by either Parent or Merger Sub to comply in all material respects with the 1934 Exchange Act and the rules and regulations thereunder and other applicable Law Laws. The Company shall promptly furnish or otherwise make available to Parent, Merger Sub and Parent’s counsel all information concerning the Company, the Company’s Subsidiaries and the Company’s stockholders that may be required in connection with any action contemplated by this Section 1.01(h), including such information required by applicable Laws to be set forth in the Offer Documents. No filing of, when filed with or amendment or supplement to, the SEC Offer Documents will be made by Parent or Merger Sub, without providing the Company and on the date first published, sent or given its counsel a reasonable opportunity to review and comment thereon and giving due consideration to such comments. If at any time prior to the stockholders of Acceptance Time or during any “subsequent offering period” (or extension thereof) any information relating to the Company, shall Parent, Merger Sub, or any of their respective Affiliates, directors or officers should be discovered by any of the parties hereto, which should be set forth in an amendment or a supplement to the Offer Documents so that such documents would not contain include any untrue statement misstatement 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 misleading, the party that discovers such information shall promptly notify the other parties hereto, and Parent and Merger subsidiary Sub shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed file with the SEC and the Offer Documents as so corrected to be disseminated to holders of Sharesan appropriate amendment or supplement describing such information and, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel Law, shall be given a reasonable opportunity disseminate such amendment or supplement to review and comment (A) on the Schedule TO and stockholders of the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselCompany. Parent and Merger Subsidiary Sub shall provide notify the Company and its counsel with promptly of the receipt of any comments, whether written or oral, from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Offer Documents or for additional information, and shall promptly supply the Company with copies of all correspondence (including a written summary of any oral comments communications) between Parent, Merger Subsidiary Sub or any of their respective Affiliates or counsel may receive from Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand, with respect to the Offer Documents promptlyDocuments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(i) If any portion of the Offer Price is to be paid to a person other than the person in whose name the tendered shares of Company Common Stock are registered, but in no event later than twenty-four hoursthe amount of any stock transfer or other similar Taxes (whether imposed on the registered holder(s), after the receipt or such other person, or otherwise) payable on account of such commentsissuance or transfer to such other person shall be deducted from the Offer Price for the exchange of such shares of Company Common Stock in the Offer, andunless evidence satisfactory to Merger Sub of the payment of such Taxes, subject or exemption therefrom, is submitted. For the avoidance of doubt, Section 2.02(g) applies to payments made pursuant to this Section 1.01.
(j) Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to pay for any shares of Company Common Stock that Merger Sub becomes obligated to accept for payment, and pay for, pursuant to the provisions hereofOffer.
(k) If, promptly respond between the date of this Agreement and the Acceptance Time, the outstanding shares of Company Common Stock shall have been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization (but excluding any change that results from (i) the exercise of stock options or the conversion into Company Common Stock of other equity awards relating to the Company Common Stock or (ii) the grant of stock-based compensation (other than any such commentsgrants not made in accordance with the terms of this Agreement) to directors or employees of the Company or its Subsidiaries under the Company’s stock option or compensation plans or arrangements), the Offer Price shall be appropriately and proportionately adjusted to reflect such reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization.
Appears in 1 contract
Sources: Merger Agreement (Dollar Thrifty Automotive Group Inc)
The Offer. (a) Provided Provided, that nothing this Agreement shall not have terminated in accordance with its terms and provided that none of the events set forth in clause (iii)(a) of Annex A shall have occurred that would give rise and subject to there being no order, decree, judgment, injunction or ruling of a right to terminate Governmental Authority of competent jurisdiction enjoining, restraining or otherwise prohibiting the commencement of the Offer pursuant and no Law having been enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Company or any subsidiary or affiliate thereof having such effect, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the conditions set forth in Annex I, Exchange Act) the Offer as promptly as practicable reasonably practicable, but no later than seven (7) business days (commencing with the first business day after the date of this Agreement), after the date hereof. Following such launch, but in no event later than three Business Days following each of Parent and Purchaser shall use its reasonable best efforts to consummate the public announcement Offer, subject to the terms and conditions hereof.
(b) The obligation of the execution of this AgreementPurchaser to accept for payment, Merger Subsidiary shall amend purchase and pay for any Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject to the satisfaction or waiver pursuant to the terms hereof of (ix) increase the purchase price to $6.50 per Share condition (the “Offer PriceMinimum Condition”), net ) that at least that number of Company Shares validly tendered and not withdrawn prior to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer (other than Company Shares tendered by guaranteed delivery where actual delivery has not occurred), when added to any Company Shares already owned by Parent or any of its controlled subsidiaries, if any, equal a majority of the sum of the then outstanding Company Shares plus (without duplication) a number equal to the number of Company Shares issuable upon the vesting (including vesting solely as a result of the consummation of the Offer), conversion, settlement or exercise of all then outstanding warrants, options, benefit plans, obligations or securities convertible or exchangeable into Common Shares, or other rights to acquire or be issued Common Shares (including then outstanding Company Stock Options and Company RSUs, assuming the effectiveness thereof occurred on the Expiration Date), in each case, with an exercise or conversion price below the Per Share Amount and (y) the other conditions set forth in Annex A hereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be midnight obligated) at any time or from time to time, in its sole discretion, to amend or waive any such condition (other than the Minimum Condition which may not be amended or waived), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, that without the prior written consent of the Company no change may be made that decreases the Per Share Amount (except as provided in Section 2.1(i)), changes the form of consideration payable in the Offer, adds to the conditions to the Offer, extends the Offer other than as set forth in this Section 2.1, decreases the number of Company Shares sought to be purchased in the Offer, extends the Offer other than in a manner pursuant to and in accordance with the terms of Section 2.1(d), or modifies or amends any condition to the Offer in any manner that broadens such conditions or is adverse to the holders of Company Shares.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) on business day beginning with (and including) the date that the Offer is ten Business Days commenced (for this purpose calculated determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) following (the filing “Expiration Date”), unless the period of such amendmenttime for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of Section 2.1(d) or as required by applicable Laws or the interpretations of the SEC (ivin which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire).
(d) make such other amendments as are necessary Notwithstanding the foregoing or appropriate to conform anything to the requirements of contrary set forth in this Agreement. The Offer , unless this Agreement shall be subject to the condition that there shall be validly tendered have been terminated in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waivedSection 9.1, (Bi) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought in the Offer, amends or adds to the Offer Conditions or amends any other term of the Offer in any manner adverse to the stockholders of the Company, (C) the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or its staff or the Nasdaq Global Stock Market that is applicable to the Offer, and (ii) if, on the initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Purchaser shall extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.1(d), (A) if any of the events set forth in clause (iii)(a) of Annex A shall have occurred on or before the initial Expiration Date or the end of any Additional Offer Period, in no event shall Merger Subsidiary Purchaser be required to extend the Offer beyond the End Initial Expiration Date unless Parent or Merger Subsidiary is end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to extend the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for one or more additional periods not then permitted to terminate this Agreement pursuant exceed an aggregate of 20 business days, to Section 11.01(b)(i), permit the Minimum Condition to be satisfied; and (C) in which case Merger Subsidiary no event shall Purchaser be required to extend the Offer beyond the End Outside Date. Following expiration ; provided further, that the foregoing clauses (i) and (ii) of this Section 2.1(d) shall not be deemed to impair, limit or otherwise restrict in any manner the right of Parent to terminate this Agreement pursuant to Section 9.1.
(e) If the Acceptance Date occurs, but there has been a 251(h) Inapplicable Determination, and the number of Company Shares that have been validly tendered and not properly withdrawn in the Offer, Merger Subsidiary shalltogether with any Company Shares then owned by Parent or any subsidiary of Parent (assuming exercise of the Top-Up Option in full and excluding from such ownership Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), if requested by is less than 90% of the Companyoutstanding Shares, or Purchaser may, in its sole discretiondiscretion without the consent of the Company, provide a for one subsequent offering period immediately following the Acceptance Date (“Subsequent Offering Period”as provided in Rule 14d-11 under the Exchange Act) of not less than three (3) nor more than twenty (20) business days (determined in accordance with Rule 14d-11 of 14d-1(g)(3) under the 1934 Exchange Act). Notwithstanding the foregoing, no extension provided for in this Section 2.1(e) shall extend the Offer beyond the Outside Date. Subject to the foregoingterms and conditions of this Agreement and the Offer, including the requirements of Rule 14d-11Purchaser shall (and Parent shall cause Purchaser to) accept for payment, and pay for, all shares of Company Common Stock validly tendered during such subsequent offering period, as promptly as practicable after any such shares of Company Common Stock are tendered during such subsequent offering period. Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Section 9.1. Notwithstanding anything to the contrary set forth in this Agreement, Purchaser shall not (and Parent shall cause Purchaser not to) commence any “subsequent offering period” after the Acceptance Date if the Merger can be effected pursuant to either (i) Section 251(h) of the DGCL or (ii) Section 253 of the DGCL.
(f) In the event that this Agreement is terminated pursuant to Section 9.1, Purchaser shall (and Parent shall cause Purchaser to) promptly (and in any event within twenty four (24) hours of such termination), irrevocably and unconditionally terminate the Offer.
(g) The Per Share Amount shall, subject to applicable withholding of taxes, be net to the applicable seller in cash, upon the terms and subject to the conditions of the Offer. Subject to the terms and conditions of this Agreement, Merger Subsidiary shall, and Purchaser or Parent on Purchaser’s behalf shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, for all Company Shares (1) validly tendered and not withdrawn pursuant to promptly following the expiration of the Offer and (2) validly tendered in the Subsequent Offering Period (the time and date on which Shares are first accepted of the acceptance for payment, the “Acceptance Date”); provided, however, that without the prior written consent of the Company, Purchaser shall not accept for payment or pay for any Company Shares if, as a result, Purchaser would acquire less than the number of Company Shares necessary to satisfy the Minimum Condition. If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such taxes either have been paid or are not applicable.
(ch) As promptly as reasonably practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, and Purchaser shall cause its Affiliates to, (i) file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an amendment offer to purchase (the “Offer to Purchase”) and form of the related letter of transmittal and any other ancillary documents pursuant to which the Offer will be made (the Schedule TO, which shall include a revised offer the Offer to purchase Purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement (collectivelysuch other documents, together with any all exhibits, supplements and amendments or supplements thereto, being referred to herein collectively as the “Offer Documents”), and (ii) . Purchaser shall use its reasonable best efforts to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of SharesCompany Shares in all material respects to the extent required by applicable federal securities laws. Each of Parent, Merger Subsidiary Parent and the Company agrees that they Purchaser shall use their respective reasonable best efforts to cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act applicable requirements of federal securities laws. Parent, Purchaser and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given Company agree to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to correct promptly any information provided by any of them for use in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, Parent and Purchaser further agree to use their respective reasonable best efforts to cause the Schedule TO TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents Documents, as so corrected corrected, to be disseminated to holders of Company Shares, in each case in all material respects as and to the extent required by applicable U.S. federal securities laws. The Company shall promptly furnish to Purchaser or Parent all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(h). Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document it is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsSEC, and Merger Subsidiary Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. In addition, Parent and Merger Subsidiary shall Purchaser agree to (i) provide the Company and its counsel in writing with any written or oral comments Parent, Merger Subsidiary Purchaser or their respective Affiliates or counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly, but in no event later than twenty-four hours, promptly after the receipt of such comments, and(ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, subject Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the provisions hereofOffer Documents promptly after the receipt of such comments, promptly respond and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such commentscomments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(i) If, between the date of this Agreement and the Acceptance Date, the outstanding Company 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 similar transaction, then the Per Share Amount applicable to such Company Share shall be adjusted to the extent appropriate.
Appears in 1 contract
Sources: Merger Agreement (Symmetricom Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VIII and none of the events or conditions set forth in Annex A shall have occurred that would give rise to a right to terminate the Offer pursuant to any of and be existing and shall not have been waived in writing by Parent or Merger Sub (the conditions set forth in Annex IA, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase price to $6.50 per Share (the “Offer Price”), net to the seller in cash, (ii) provide that the conditions to the Offer shall be as set forth in Annex I and that no other conditions shall apply, (iii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Tender Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfiedSub shall, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary Sub to, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the “Exchange Act”)) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and on August 31, 2007. Without the prior written consent of the Company, Merger Sub shall not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay decrease the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary expressly reserves the right to waive any of the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (B) no change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends or adds decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose conditions to the Offer Conditions in addition to the Tender Offer Conditions, waive or amends amend the Minimum Condition or amend any other term of the Offer in any a manner which is materially adverse to the stockholders Company Shareholders; provided that Merger Sub expressly reserves the right to increase the Offer Price and to waive any of the CompanyTender Offer Conditions, other than 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.
(Cb) the expiration date shall not be extended except as otherwise provided hereinMerger Sub shall, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary Sub to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of file with the U.S. Securities and Exchange Commission (the “SEC”) or the Nasdaq Global Market applicable to the Offer; provided that in no event shall Merger Subsidiary be required to extend the a Tender Offer beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance Statement on Schedule TO with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and pay for, as promptly as practicable after the expiration of the Offer, all Shares (1) validly tendered and not withdrawn pursuant respect to the Offer and (2) validly tendered in the Subsequent Offering Period (on the date on which Shares are first accepted for payment, that the “Acceptance Date”).
(c) As promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Merger Subsidiary shall, and shall cause its Affiliates to, (i) file with the SEC an amendment to the Schedule TOOffer is commenced, which Tender Offer Statement shall include a revised an offer to purchase purchase, form of transmittal letter and form of letter notice of transmittal reflecting the terms and conditions set forth in this Agreement guaranteed delivery (collectively, together with any supplements or amendments or supplements thereto, collectively, the “Offer Documents”)) and, and (ii) subject to the extent required by applicable U.S. federal securities lawsCompany’s compliance with Section 1.02(c), cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees Shareholders in accordance with the applicable requirements of the U.S. federal securities Laws. Parent and Merger Sub agree that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to shall comply in all material respects with the 1934 Act and applicable U.S. federal securities Laws and, on the rules and regulations thereunder and other applicable Law and that the Offer Documents, when date first filed with the SEC and on the date first published, sent or given to the stockholders of Company Shareholders and on the CompanyAcceptance Date, 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 (misleading, except that no covenant, agreement, representation or warranty is made by Parent and or Merger subsidiary shall have no obligation Sub with respect to any information in the Offer Documents supplied by the Company for inclusion or its Representatives incorporation by reference in writing)the Offer Documents. Each of ParentThe Company, Parent and Merger Subsidiary and the Company agrees Sub each agree promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts Parent further agrees to take all steps necessary to cause the Schedule TO Offer Documents as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and the Company Shareholders to the extent required by applicable U.S. federal securities lawsLaw. The Company shall promptly furnish to Parent and Merger Sub all information concerning the Company that is required or reasonably requested by Parent or Merger Sub in connection with the obligations relating to the Offer Documents contained in this Section 1.01(b). The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before and any such document is filed amendments thereto in advance of filing with the SEC after or dissemination to the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer DocumentsCompany Shareholders, and Parent and Merger Subsidiary Sub shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary Sub shall (i) provide the Company and its counsel with a copy of any written comments or telephonic notification of any oral comments Parent, Parent or Merger Subsidiary or their respective Affiliates or counsel Sub may receive from the SEC or its staff (the “SEC Staff”) with respect to the Offer Documents promptly, but in no event later than twenty-four hours, as promptly as practicable after the receipt of thereof, (ii) consult in good faith with the Company and its counsel prior to responding to any such comments, and, subject and (iii) provide the Company and its counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto of Parent and Merger Sub or their counsel.
(c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) Business Day beginning with (and including) the date that the Offer is commenced (determined in accordance with Rule 14d-1(g) (3) under the Exchange Act) (the “Expiration Date”), unless Merger Sub shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the following provisions hereofof this sentence or as may be required by applicable Law, promptly respond 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 shall have the right, in its sole discretion, but not the obligation to such comments(i) extend the Offer for one or more periods of not more than five Business Days each if, at the scheduled Expiration Date, any of the Tender Offer Conditions shall not have been satisfied or waived; or (ii) 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 Offer, together with any shares of Company Common Stock then owned by Parent, is less than 90% of the outstanding shares of Company Common Stock, commence a subsequent offering period (as provided in Rule 14d-11 under the Exchange Act) for three (3) to twenty (20) Business Days to acquire outstanding shares of Company Common Stock. Merger Sub shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or of the Staff applicable to the Offer.
Appears in 1 contract
Sources: Merger Agreement (Rare Hospitality International Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article 8 and none of the events set forth in ANNEX A hereto shall have occurred that would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Annex Iand be continuing, Parent shall cause Purchaser to, as promptly as practicable after practicable, and, in any event, within ten (10) Business Days of the date hereof, but in no event later than three Business Days following commence (within the public announcement meaning of Rule 14d-2(a) under the execution Securities Exchange Act of this Agreement1934, Merger Subsidiary shall amend as amended (the "EXCHANGE ACT")) the Offer to (i) increase the purchase any and all outstanding Shares, at a price to $6.50 per Share (equal to the “Offer Price”), net to the seller in cash, (ii) provide that the conditions without interest, subject to reduction for any applicable withholding taxes and, if such payment is to be made other than to the registered holder, any applicable stock transfer or other similar taxes payable by such holder. The Offer shall will be as made pursuant to an offer to purchase and related letter of transmittal containing the terms and conditions set forth in Annex I this Agreement and that no other conditions shall apply, (iii) provide that the ANNEX A hereto. The initial expiration date of the Offer shall be midnight (New York City time) on the twentieth Business Day from and after the date that the Offer is ten Business Days (for this purpose calculated commenced as determined in accordance with Rule 14d-1(g)(314d-2(a) under the Exchange Act) following Act (the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement"INITIAL EXPIRATION DATE"). The Offer shall be subject obligation of Purchaser to the condition that there shall be accept for payment, purchase and pay for any Shares validly tendered in accordance with the terms of the Offer prior pursuant to the expiration date of the Offer and not withdrawn, a number withdrawn shall be subject only to the satisfaction of Shares that, together with (i) the Shares then owned by Parent and its Affiliates, represents condition that at least a majority of the total number shares of Shares Company Common Stock outstanding on a fully-diluted basisbasis assuming the exercise of all options, without regard warrants, rights and convertible securities outstanding on the date the Offer expires (taking into account any shares of Company Common Stock owned by Parent or Purchaser or any affiliate of Parent or Purchaser on the date such Shares are purchased pursuant to whether any convertible or exchangeable securities are then vested the Offer) have been validly tendered and exercisable not withdrawn prior to the expiration of the Offer (the “Minimum Condition”"MINIMUM CONDITION") and to (ii) the other conditions set forth in Annex I and to no other conditions. Subject to the terms and conditions of this AgreementANNEX A hereto; provided, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”)however, promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary that Purchaser expressly reserves the right to waive any of the conditions to the Offer Conditions (other than the Minimum Condition) and to make any other changes change in the terms of or conditions of the Offer (other than the Minimum Condition) in its sole discretion, subject to Section 1.01(b).
(b) Purchaser expressly reserves the right to modify the terms of the Offer; provided provided, however, that without the prior written consent of the Company Company, neither Parent nor Purchaser will (which consent may be granted or withheld by i) decrease the Company in its sole discretion) (A) the Minimum Condition may not be waivedOffer Price, (Bii) no change may be made that changes the form of consideration to be paid, decreases the price per Share or decrease the number of Shares sought in the Offer, amends or adds (iii) change the form of consideration payable in the Offer, (iv) impose conditions to the Offer Conditions in addition to the Minimum Condition and the other conditions set forth in ANNEX A, (v) except as provided below or amends required by any other rule, regulation, interpretation or position of the Securities and Exchange Commission ("SEC") applicable to the Offer, change the expiration date of the Offer, or (vi) otherwise amend or change any term or condition of the Offer in any a manner adverse to the stockholders holders of Shares. Notwithstanding anything in this Agreement to the contrary, without the consent of the Company, (C) Purchaser shall have the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior right to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at beyond the scheduled Initial Expiration Date in the following events: (i) from time to time, but in no event later than the date that is ten (10) Business Days from the Initial Expiration Date (or extended expiration date of the Offer any Offer, if applicable), if, at the Initial Expiration Date (or extended expiration date of the Offer, if applicable), one or more of the conditions to the Offer shall not be have been satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend provided, however, that the expiration date of the Offer may not extend beyond the 60th day after commencement of the Offer; (ii) for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the OfferOffer or any period required by applicable Law (as hereinafter defined); provided that in no event shall Merger Subsidiary be required or (iii) if all of the conditions to extend the Offer are satisfied or waived but the number of Shares validly tendered and not withdrawn is less than ninety percent (90%) of the then outstanding number of Shares; provided, however, that the expiration date of the Offer may not extend beyond the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i), in which case Merger Subsidiary shall be required to extend 60th day after the Offer beyond the End Date. Following expiration commencement of the Offer. In the event the Minimum Condition is satisfied and the Purchaser purchases Shares pursuant to the Offer, Merger Subsidiary shall, if requested by the Company, or Purchaser may, in its sole discretion, provide a "subsequent offering period (“Subsequent Offering Period”) period" in accordance with Rule 14d-11 of under the 1934 Exchange Act. Subject Upon the satisfaction or waiver of all the conditions to the foregoing, including the requirements of Rule 14d-11, and upon the terms Offer and subject to the terms and conditions of the Offerthis Agreement, Merger Subsidiary shall, and Parent shall cause it to, Purchaser will accept for payment payment, purchase and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in as soon as reasonably practicable after the Subsequent Offering Period (expiration of the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(c) As promptly soon as reasonably practicable after on the date hereof, but in no event later than three Business Days following the public announcement of commencement of the execution of this AgreementOffer, Merger Subsidiary shall, Parent and Purchaser shall cause its Affiliates to, (i) file with the SEC an amendment a Tender Offer Statement on Schedule TO with respect to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Offer (collectively, together with any amendments or supplements thereto, the “Offer Documents”"SCHEDULE TO"), which shall contain or incorporate by reference the offer to purchase and forms of the related letter of transmittal and such other ancillary documents and instruments pursuant to which the Offer will be made (ii) such Schedule TO and such documents included therein pursuant to which the extent required by applicable U.S. federal securities lawsOffer will be made, cause together with any supplements or amendments thereto, the "OFFER DOCUMENTS"). Parent and Purchaser agree that the Offer Documents will comply as to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary form and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply content in all material respects with the 1934 Act and applicable provisions of the rules and regulations thereunder and other applicable Law and that federal securities Laws and, on the Offer Documents, when date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading (misleading, except that no representation is made by Parent and Merger subsidiary shall have no obligation or Purchaser with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing)writing for inclusion in the Offer Documents. Each of Parent, Merger Subsidiary Purchaser and the Company agrees promptly each agree to correct promptly any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectrespect and to supplement the information provided by it for use in the Schedule TO or the other Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Merger Subsidiary shall, Parent and shall cause its Affiliates to, use their respective reasonable best efforts Purchaser agree to take all steps necessary to cause the Schedule TO Offer Documents as so corrected or supplemented to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of SharesShares of Company Common Stock, in each case as and to the extent required by applicable U.S. federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is prior to their being filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselSEC. Parent and Merger Subsidiary shall Purchaser agree to provide to the Company and its counsel with any written comments or oral comments other communications which Parent, Merger Subsidiary Purchaser or their respective Affiliates or counsel may receive from the staff of the SEC with respect to the Offer Documents promptlypromptly after receipt thereof, but in no event later than twenty-four hours, after the receipt of such comments, and, subject and Parent and Purchaser shall consult with and provide to the provisions hereofCompany and its counsel a reasonable opportunity to review and comment on the response of Purchaser and Parent prior to responding to the SEC.
(d) Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to accept for payment, promptly respond and pay for, any Shares that Purchaser becomes obligated to such commentsaccept for payment, and pay for, pursuant to the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would give rise Subject to a right to terminate the Offer pursuant to any provisions of the conditions set forth this Agreement and this Agreement not having been terminated in Annex Iaccordance with ARTICLE 10 hereof, as promptly as practicable but in any event within ten business days after the date hereof, but Merger Sub shall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations promulgated thereunder, an offer to purchase (the "OFFER") all, and in no any event later not less than three Business Days following a majority on a fully diluted basis (assuming the public announcement exercise of all Options (as defined in Section 5.2(d)) that are then exercisable and any other rights to acquire shares of Common Stock on the date of purchase (a "FULLY DILUTED BASIS"), of the execution outstanding shares of this Agreement, Merger Subsidiary shall amend the Offer to (i) increase the purchase Common Stock at a price to of $6.50 3.00 per Share (the “Offer Price”)share of Common Stock, net to the seller in cash, without interest (ii) provide that the conditions such price or any higher price paid pursuant to the Offer shall be as set forth in Annex I Offer, the "OFFER CONSIDERATION"). Notwithstanding the foregoing, if between the date of this Agreement and that no other conditions shall apply, (iii) provide that the expiration date closing of the Offer the outstanding shares of Common Stock shall have been changed into a different number of shares or a different class by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Offer Consideration shall be midnight (New York City time) correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Purchaser and Merger Sub to commence the date that is ten Business Days (Offer and accept for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendmentpayment, and (iv) make such other amendments as are necessary or appropriate to conform pay for, any shares of Common Stock tendered pursuant to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn, a number of Shares that, together with the Shares then owned by Parent and its Affiliates, represents a majority of the total number of Shares outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “Minimum Condition”) and to the other conditions set forth in Annex I EXHIBIT A hereto and to no other conditions. Subject to the terms and conditions of this Agreement. Subject to the provisions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly shall expire 20 business days after the later date of (x) the earliest date as of which Merger Subsidiary its commencement, unless this Agreement is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer terminated in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to ARTICLE 10, in which case the Offer and promptly following (whether or not previously extended in accordance with the acceptance terms hereof) shall expire on such date of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditionstermination.
(b) Purchaser and Merger Subsidiary Sub expressly reserves reserve the right right, in their sole discretion, to modify the terms of the Offer and to waive any condition of the Offer Conditions Offer, except that, without the prior written consent of the Company, Merger Sub shall not (and to make any other changes Purchaser shall cause Merger Sub not to) (i) waive the Minimum Condition (as defined in EXHIBIT A), (ii) reduce the terms number of or conditions shares of Common Stock subject to the Offer; provided that without the prior consent of the Company (which consent may be granted or withheld by the Company in its sole discretion) (A) the Minimum Condition may not be waived, (Biii) no reduce the price per share of Common Stock to be paid pursuant to the Offer, (iv) except as set forth below, extend the Offer, (v) change may be made that changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought payable in the Offer, amends (vi) except as set forth herein, amend or adds to the Offer Conditions modify any term or amends any other term condition of the Offer (including the conditions set forth on EXHIBIT A) in any manner adverse to the stockholders holders of Common Stock or (vii) impose additional conditions to the Offer other than such conditions required by applicable law. So long as this Agreement is in effect and the conditions to the Offer set forth in EXHIBIT A have not been satisfied or waived, Merger Sub may, without the consent of the Company, (C) extend the expiration date shall not be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate of the Offer prior for one or more periods of up to any scheduled ten additional business days each (but in no event shall Merger Sub be permitted to extend the expiration date except in of the event that Offer beyond the sixtieth business day after the date of this Agreement (the "OUTSIDE DATE")). So long as this Agreement is terminated pursuant in effect and the conditions to Section 11.01the Offer have been satisfied or waived and shall not apply to any extension, Merger Sub may, without the consent of the Company, provide for one or more subsequent offering periods in accordance with Rule 14d-11 under the Exchange Act, if (i) the number of shares of Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of the Common Stock on a Fully Diluted Basis and (ii) Merger Sub shall accept and promptly pay for all shares of Common Stock validly tendered and not withdrawn; PROVIDED, HOWEVER, that no such subsequent offering periods shall exceed, in the aggregate, twenty business days. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at Sub may, without the request consent of the Company, Parent shall cause Merger Subsidiary to) extend the Offer (beyond the Outside Date, if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied necessary) (other than conditions which by their nature are to be satisfied on the Acceptance Datei) or waived; and (y) Merger Subsidiary shall extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “"SEC”") or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event shall Merger Subsidiary be required Offer and (ii) for one or more periods of up to extend ten additional business days due to the failure to satisfy the condition to the Offer beyond relating to the End Date unless Parent expiration or termination of the waiting period under the HSR Act (as defined below). It is agreed that the conditions set forth in EXHIBIT A are for the sole benefit of Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)Sub and Purchaser and may be asserted by Merger Sub or Purchaser, or may be waived in whole or in part by Merger Sub or Purchaser, in which case their sole discretion. The failure by Merger Subsidiary Sub or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be required to extend the Offer beyond the End Date. Following expiration of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Actdeemed an ongoing right which may be asserted at any time. Subject to the foregoing, including the requirements of Rule 14d-11, and upon the terms and subject to the conditions of the OfferOffer and this Agreement and to the provisions of Rule 14d-11 under the Exchange Act, Merger Subsidiary shall, and Parent Sub shall cause it to, accept for payment and pay for, as promptly as practicable after in accordance with the expiration terms of the Offer, all Shares (1) shares of Common Stock validly tendered and not withdrawn pursuant to the Offer and (2) validly tendered in as soon as practicable after the Subsequent Offering Period (expiration of the date on which Shares are first accepted for payment, the “Acceptance Date”)Offer.
(c) As promptly as practicable after Purchaser shall provide or cause to be provided to Merger Sub on a timely basis the date hereof, but in no event later than three Business Days following funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the public announcement of the execution of this Agreement, Merger Subsidiary shall, Offer and shall cause be liable on a direct and primary basis for the performance by Merger Sub or the Surviving Corporation (as defined in SECTION 2.1), as the case may be, of its Affiliates to, (i) file with the SEC an amendment to the Schedule TO, which shall include a revised offer to purchase and form of letter of transmittal reflecting the terms and conditions set forth in obligations under this Agreement (collectively, together with any amendments or supplements thereto, the “Offer Documents”), and (ii) to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed by any of them with the SEC to comply in all material respects with the 1934 Act and the rules and regulations thereunder and other applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from the SEC with respect to the payment of the Offer Documents promptlyConsideration, but the Option Consideration (as defined in no event later than twentySECTION 5.2(D)) and the Merger Consideration (as defined in SECTION 5.2(B)). Merger Sub may, at any time, transfer or assign to one or more corporations directly or indirectly wholly-four hours, after owned by Purchaser the receipt right to purchase all or any portion of such comments, and, subject the shares tendered pursuant to the provisions hereofOffer, promptly respond provided that any such transfer or assignment shall not prejudice the rights of tendering stockholders to such commentsreceive payment for shares of Common Stock properly tendered and accepted for payment.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would give rise to a right to terminate the Offer pursuant to any been terminated in accordance with Section 11.01 and none of the conditions events set forth in Annex II hereto shall have occurred and be continuing, as promptly as practicable after the date hereofpracticable, but in no event later than three Business Days following one business day, after the public announcement date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "Form TO/A"), an amended Offer to Purchase (the "Amended Offer to Purchase") and, if necessary, the related letter of transmittal and any related summary advertisement (the execution of this AgreementForm TO/A, Merger Subsidiary shall amend the Amended Offer to Purchase and such other documents, together with all amendments and supplements thereto, the "Offer Documents") to reflect, among other things, an increase in the per share price to be paid in the Offer to (i) increase $27.00 and, if necessary, an extension of the purchase price currently scheduled expiration date to $6.50 per Share (allow the “Offer Price”), net to remain open for ten business days from the seller in cash, (ii) provide that date of such increase. The obligation of Merger Co. to consummate the conditions Offer and to accept for payment and to pay for shares of Company Common Stock tendered pursuant to the Offer shall be as set forth in Annex I and that no other conditions shall apply, subject only to (iiii) provide that the expiration date of the Offer shall be midnight (New York City time) on the date that is ten Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) following the filing of such amendment, and (iv) make such other amendments as are necessary or appropriate to conform to the requirements of this Agreement. The Offer shall be subject to the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn, a number of Shares shares that, together with the Shares shares of Company Common Stock then owned by Parent and its Affiliatesand/or Merger Co., represents a majority 50.1% of the total number shares of Shares Company Common Stock outstanding on a fully-diluted basis, without regard to whether any convertible or exchangeable securities are then vested and exercisable (the “"Minimum Condition”") and to (ii) the other conditions set forth in Annex I and to no other conditionshereto. Subject to the terms and conditions of this Agreement, including the prior satisfaction or waiver of the conditions set forth in Annex I (the “Offer Conditions”), promptly after the later of (x) the earliest date as of which Merger Subsidiary is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (y) the earliest date as of which each of the Offer Conditions has been satisfied, or waived by Parent or Merger Subsidiary, Merger Subsidiary shall (and Parent shall cause Merger Subsidiary to) consummate the Offer in accordance with its terms and accept for payment each Share validly tendered and not properly withdrawn pursuant to the Offer and promptly following the acceptance of Shares for payment pursuant to the Offer pay the Offer Price (without interest) for each Share validly tendered and not properly withdrawn pursuant to the Offer. The obligation of Merger Subsidiary (and of Parent to cause Merger Subsidiary) to accept for payment, and pay the Offer Price (without interest) for, each Share validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction, or waiver by Parent or Merger Subsidiary, of each of the Offer Conditions.
(b) Merger Subsidiary Co. expressly reserves the right to waive any of such condition (other than the Offer Conditions and to make any other changes in the terms of or conditions to the Offer; provided that Minimum Condition, which shall not be waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company (which consent may be granted or withheld by Common Stock Amount. Notwithstanding the Company in its sole discretion) (A) the Minimum Condition may not be waivedforegoing, (B) no change may be made that which (i) decreases the Per Share of Company Common Stock Amount, (ii) changes the form of consideration to be paid, decreases the price per Share or the number of Shares sought paid in the Offer, amends (iii) increases the Maximum Amount or adds the Minimum Condition, (iv) reduces the number of shares of Company Common Stock sought to be purchased in the Offer, (v) imposes conditions to the Offer Conditions in addition to those set forth in Annex I hereto, (vi) except as specifically provided for in this Section 2.01(a), extends the expiration date of the Offer or (vii) otherwise alters or amends any other term of the Offer in any manner adverse to the stockholders holders of shares of Company Common Stock; provided, however, that the Company, (C) the expiration date shall not Offer may be extended except as otherwise provided herein, and (D) Merger Subsidiary shall not terminate the Offer prior to any scheduled expiration date except in the event that this Agreement is terminated pursuant to Section 11.01. Notwithstanding the foregoing, (x) Merger Subsidiary shall (or at the request of the Company, Parent shall cause Merger Subsidiary to) extend the Offer if at the scheduled or extended expiration date of the Offer any of the conditions to the Offer shall not be satisfied or waived, from time to time until such conditions are satisfied (other than conditions which by their nature are to be satisfied on the Acceptance Date) or waived; and (y) Merger Subsidiary shall extend the Offer for any period to the extent required by law or by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the Nasdaq Global Market staff thereof applicable to the Offer; provided that in no event . Parent and Merger Co. shall Merger Subsidiary be required to extend comply with the Offer beyond obligations respecting prompt payment and announcement under the End Date unless Parent or Merger Subsidiary is not then permitted to terminate this Agreement pursuant to Section 11.01(b)(i)Exchange Act, in which case Merger Subsidiary shall be required to extend and, without limiting the Offer beyond the End Date. Following expiration generality of the Offer, Merger Subsidiary shall, if requested by the Company, or may, in its sole discretion, provide a subsequent offering period (“Subsequent Offering Period”) in accordance with Rule 14d-11 of the 1934 Act. Subject to the foregoing, including the requirements of Rule 14d-11, and upon subject to the terms and subject conditions of this Agreement, including but not limited to the conditions of the Offer, Merger Subsidiary shall, Co. shall and Parent shall cause it Merger Co. to, accept for payment and pay for, for shares of Company Common Stock tendered pursuant to the Offer as promptly soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in Section 2.01(d) or 2.01(e), Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the expiration of the Offer, all Shares (1) Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, together with the shares of Company Common Stock then owned by Parent and (2) validly tendered in Merger Co., will represent 50.1% of the Subsequent Offering Period (the date on which Shares are first accepted for payment, the “Acceptance Date”)shares of Company Common Stock outstanding.
(cb) As Provided that this Agreement shall not have been terminated in accordance with Section 11.01 and none of the events set forth in Annex II hereto shall have occurred and be continuing, as promptly as practicable after the date hereof, but in no event later than three Business Days following the public announcement of the execution of this Agreement, Parent shall cause Merger Subsidiary shallCo. to, and Merger Co. shall cause its Affiliates to(i) commence the Exchange Offer pursuant to which Merger Co. shall offer to issue a number of duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Offer Ratio (as defined below) for each then issued and outstanding share of Company Common Stock (other than shares of Company Common Stock then owned by Parent or Merger Co.), (iii) file with the SEC, to the extent required by the Exchange Act, a Form TO (the "Exchange Form TO"), an Offer to Exchange (the "Offer to Exchange") and the related letter of transmittal and any related summary advertisement (the Exchange Form TO, the Offer to Exchange and such other documents, together with all amendments and supplements thereto, the "Exchange Offer Documents") and (iii) file with the SEC an amendment a Registration Statement on Form S-4 (the "Exchange Form S-4) to register under the Securities Act the securities to be issued in the Exchange Offer. The obligation of Merger Co. to consummate the Exchange Offer and to issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Schedule TO, which Exchange Offer shall include a revised offer be subject only to purchase and form of letter of transmittal reflecting the terms and conditions set forth in this Agreement Annex II hereto. Merger Co. expressly reserves the right to waive any such condition and to increase the Exchange Offer Ratio. Notwithstanding the foregoing, no change may be made which (collectivelyi) decreases, together with any amendments or supplements theretowould have the effect of decreasing, the “Exchange Offer Documents”)Ratio, and (ii) changes the form of consideration to be paid in the Exchange Offer, (iii) reduces the number of shares of Company Common Stock sought to be purchased in the Exchange Offer, (iv) imposes conditions to the Exchange Offer in addition to those set forth in Annex II hereto, (v) extends the expiration date of the Exchange Offer or (vi) otherwise alters or amends any term of the Exchange Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that the Exchange Offer may be extended for any period to the extent required by applicable U.S. federal securities laws, cause the Offer Documents to be disseminated to holders of Shares. Each of Parent, Merger Subsidiary and the Company agrees that they shall cause the Schedule TO and the other Offer Documents filed law or by any rule, regulation, interpretation or position of them with the SEC to comply in all material respects with or the 1934 Act and the rules and regulations thereunder and other staff thereof applicable Law and that the Offer Documents, when filed with the SEC and on the date first published, sent or given to the stockholders of the Company, 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 Parent and Merger subsidiary shall have no obligation with respect to any information in the Offer Documents supplied by the Company or its Representatives in writing). Each of Parent, Merger Subsidiary and the Company agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule TO and the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect. Merger Subsidiary shall, and shall cause its Affiliates to, use their respective reasonable best efforts to cause the Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule TO and the Offer Documents each time before any such document is filed with the SEC after the date hereof and (B) on any correspondence with the SEC (including comment response letters) concerning the Offer or the Offer Documents, and Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counselExchange Offer. Parent and Merger Subsidiary Co. shall provide comply with the Company obligations respecting prompt delivery of shares of Parent Common Stock and its counsel with any written or oral comments Parent, Merger Subsidiary or their respective Affiliates or counsel may receive from announcement under the SEC with respect to the Offer Documents promptly, but in no event later than twenty-four hours, after the receipt of such commentsExchange Act, and, without limiting the generality of the foregoing, subject to the provisions hereofterms and conditions of this Agreement, promptly respond including but not limited to the conditions of the Exchange Offer, Merger Co. shall and Parent shall cause Merger Co. to, accept for exchange and issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer as soon as practicable after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the Exchange Offer from time to time in the event that, at a then-scheduled expiration date, all of the conditions to the Exchange Offer have not been satisfied or waived as permitted pursuant to this Agreement, each such commentsextension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in Section 2.01(d) or 2.01(e), Merger Co. shall not terminate the Exchange Offer without accepting shares of Company Common Stock and issuing shares of Parent Common Stock pursuant to the Exchange Offer. Notwithstanding anything to the contrary set forth herein, no certificates representing fractional shares of Parent Common Stock shall be issued in connection with the Exchange Offer, and in lieu thereof each tendering stockholder who would otherwise be entitled to a fractional share of Parent Common Stock in the Exchange Offer will be paid an amount in cash equal to the product obtained by multiplying (A) the fractional share interest to which such holder would otherwise be entitled by (B) the Average Exchange Offer Price (as defined below).
(c) For purposes of this Section 2.01, "Exchange Offer Ratio" means the number of shares of Parent Common Stock determined as set forth below:
Appears in 1 contract
Sources: Merger Agreement (Tyson Foods Inc)