The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997. (b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. (c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Sun Healthcare Group Inc), Merger Agreement (Sun Healthcare Group Inc), Merger Agreement (Regency Health Services Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Offer. The Offer Documents (as so amended, the “Amended Offer Documents”) and file with the Securities and Exchange Commission (the “SEC”) the Amended Offer Documents; provided, however, that the obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be is subject only to the conditions set forth in Exhibit A Annex 1 (any or all of which may (other than the Minimum Tender Condition) may, subject to the provisions hereof, be waived by Merger Sub in its sole discretionParent or Sub, provided that, without the consent subject to applicable Law). The initial expiration date of the Company, Merger Sub Offer (the “Expiration Date”) shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rules 14d-1 and 14d-2 promulgated by the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify reduce or waive the Minimum Tender Condition (defined in Annex 1), (iv) add to the conditions set forth in Exhibit AAnnex 1, (ivv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend or modify any term other condition of the Offer in any manner adverse to any of the Company's ’s stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer in increments of not more than ten business days each, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's ’s obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation interpretation, position or position request of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (C) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC). Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate the Offer at that any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Annex 1 is not satisfied or waived, it shall give waived at the Company notice thereof andscheduled Expiration Date, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodSub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of five business days each until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2v) the date chosen by that is 15 days after the Companyinitial Expiration Date, which shall not be later than (w) the satisfaction or waiver of such condition, (x) December 31the determination by Parent that such condition to the Offer is not capable of being satisfied on or prior to the date specified in Section 9.01(b)(ii)(B), 1997 provided that such inability to satisfy such condition is not due to any failure of Parent or Sub to perform in any material respect any covenant or agreement of Parent or Sub contained herein, or the material breach by Parent or Sub of any representation or warranty contained herein, (y) the termination of this Agreement in accordance with its terms and (z) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood specified in Section 9.01(b)(ii)(B); provided, however, that the Company Parent and Sub shall not be entitled required to make such request so extend the Expiration Date if it is then the failure to satisfy any condition set forth in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Annex 1 was caused by or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to resulted from the failure of the Minimum Condition Company to be satisfied, it shall, at the request perform in any material respect any covenant or agreement of the CompanyCompany contained herein, extend or the Offer for such period as may be requested material breach by the Company not to exceed ten business days from such scheduled expiration dateof any representation or warranty contained herein. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay accept for all payment shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as it is legally permitted to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997do so under applicable Law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain contained an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be is being made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as cooperate fully in the preparation of amendments to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on to reflect the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement terms of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by this Agreement and the Company in writing for inclusion in and its counsel shall be given a reasonable opportunity to review the Amended Offer DocumentsDocuments before they are filed with the SEC. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to further amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger and Sub on a have timely basis filed with the funds necessary to purchase Commissioner of Commerce of the State of Minnesota any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant registration statement relating to the Offer and required to perform any of its other obligations be filed pursuant to this AgreementChapter 80B of the Minnesota Statutes and shall disseminate to the Company’s stockholders via the Offer Documents the information set forth in any such registration statement to the extent and within the time period required by Chapter 80B of the Minnesota Statutes.
Appears in 3 contracts
Samples: Merger Agreement (Ruby Merger Corp.), Merger Agreement (Ruby Merger Corp.), Merger Agreement (Retek Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, Parent shall, as promptly as practicable but and in no event later than ten business days after the fifth business day from and including date hereof, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) the Offer at the Offer Price, net to the seller but subject to any required withholding of Taxes.
(b) The initial expiration date of the public announcement Offer shall be midnight (New York City time) on the date that is 20 business days from the date on which the Offer was commenced (determined as provided in Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Date” and any expiration time and date established pursuant to an extension of this Agreementthe Offer as so extended, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. also an “Expiration Date”).
(c) The obligation of Merger Sub to, and obligations of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Public Shares tendered pursuant to the Offer shall be are subject only to (i) the conditions set forth in Exhibit A 1 and (any of which may be waived by Merger Sub in its sole discretion, provided that, without ii) the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered non-waivable condition that pursuant to the Offer, but no prior to the Expiration Date, there shall have been validly tendered and not properly withdrawn a number of Public Shares which constitutes at least a majority of the outstanding Public Shares (assuming the exercise of all options, warrants and other rights to purchase shares of Common Stock and excluding from the numerator of such assignment shall relieve calculation any shares held by stockholders that are affiliated with the Company, including directors and officers of the Company, as of the Acceptance Time) (the “Majority-of-the-Minority Condition”).
(d) Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right (x) to increase the Offer Price and (y) to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Parent shall not (i) reduce the number of shares of Common Stock Public Shares subject to the Offer, (ii) except as provided in Section 4.4, reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A1 or modify any condition set forth in Exhibit 1 in any manner adverse to the holders of Public Shares, (iv) except as otherwise provided in the remainder of this Section 1.11.1(d), extend the Offer, (v) waive or modify the Majority-of-the-Minority Condition, or (vi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub Parent may, in its discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer for one or more consecutive increments of not more than ten business days each, if at the any otherwise scheduled expiration date Expiration Date of the Offer any of the conditions to Merger Sub's Parent’s obligation to purchase shares of Common Stock shall Public Shares are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or (iii) make available a “subsequent offering period” in order to obtain accordance with Exchange Act Rule 14d-11. In addition, if at any material regulatory approval applicable otherwise scheduled Expiration Date of the Offer any condition to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be is not satisfied or waived, it Parent shall give extend the Company notice thereof and, Offer at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer Company for one or more consecutive increments of not more than ten business days each until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen that is 40 business days after commencement of the Offer (the “Outside Date”) and the termination of this Agreement in accordance with its terms. In addition, Parent shall, if requested by the Company, which make available a subsequent offering period in accordance with Exchange Act Rule 14d-11 of not less than ten business days; provided that Parent shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled required to make available such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement a subsequent offering period in the event that, prior to the commencement of such subsequent offering period, MUFG and its Subsidiaries collectively hold at least 90% of the outstanding shares of Common Stock (the requirement that MUFG and its Subsidiaries collectively hold at least 90% of the Company is in breach hereof or outstanding shares of Common Stock being the conditions specified in paragraphs (d) or “90% Requirement”).
(e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for all shares of Common Stock Public Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub Parent becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided. For purposes of this Agreement, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten term “business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there day” shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at meaning assigned to such term in Rule 14d-1(g)(3) under the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Bank of Tokyo - Mitsubishi Ufj, LTD), Merger Agreement (Unionbancal Corp), Merger Agreement (Mitsubishi Ufj Financial Group Inc)
The Offer. (a) Subject to Provided that (1) none of the provisions events or circumstances set forth in paragraphs (a) through (g) of this AgreementAnnex A hereto shall have occurred and be existing (and shall not have been waived by Merger Sub) and (2) the Company shall have complied in all material respects with its obligations under Section 1.2, as promptly as practicable reasonably practicable, but in no event later than ten (10) business days (as defined in Rule 14d-1(g)(3) promulgated by the fifth business day from United States Securities and including Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the SEC. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent Annex A. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderOffer (determined using Exchange Act Rule 14d-1(g)(3)). Merger Sub expressly reserves the right to waive any condition to the Offer, to increase the price per Share payable in the Offer and/or to modify the other terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or waive the Minimum Tender Condition (as defined in Annex A), (iv) add to the conditions set forth in Exhibit AAnnex A or modify any condition set forth in Annex A in a manner adverse to the holders of Company Common Stock, (ivv) extend the Offer (except as provided in the remainder of this Section 1.1, extend the Offerbelow), (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to extend the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), Offer (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (Aii) in if at the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to date of the failure of one or more Offer, any of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit Annex A to be shall not have been satisfied or waived, it for one (1) or more periods of not more than ten (10) business days each, until such time as such conditions are satisfied or waived, or (iii) for one (1) or more periods for an aggregate period of not more than twenty (20) business days beyond the latest expiration date that would otherwise be permitted if, on such expiration date, there shall give not have been tendered and not withdrawn that number of Shares that, together with any Shares then owned by Parent, would equal ninety percent (90%) or more of the Company notice thereof andissued and outstanding Shares; provided that if Merger Sub shall extend the offer pursuant to this clause (iii), Merger Sub shall waive during such extension all conditions set forth in Annex A other than the Minimum Tender Condition, the Regulatory Condition and the conditions set forth in paragraphs (a), (b) and (f) therein. In addition, subject to Parent’s right to terminate this Agreement pursuant to Section 9.1, (i) if at the initially scheduled expiration date of the Offer, any one or more of the Minimum Tender Condition, the Regulatory Condition or the conditions set forth in paragraphs (a), (b), (e) or (f) of Annex A are not satisfied, at the request of the CompanyCompany Merger Sub shall, if such conditions are reasonably likely to be satisfied during the requested extension periodand Parent shall cause Merger Sub to, extend the Offer until the earlier of offer one (1) such time as such condition is, or conditions are, satisfied or waived for a period of up to ten (10) business days and (2ii) if at any extended expiration date of the date chosen by Offer, the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Regulatory Condition or the conditions specified set forth in paragraphs (de) or (ef) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the CompanyCompany Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for increments of not more than ten (10) business days each until such period time as may such conditions are satisfied or waived; provided that Merger Sub shall not be requested required to extend the Offer beyond the Outside Date. Further, Merger Sub may, without the consent of the Company, make available a “subsequent offering period”, in accordance with Rule 14d-11 promulgated by the Company not SEC under the Exchange Act, for up to exceed ten twenty (20) business days from such scheduled expiration datedays. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided. For the avoidance of doubt, however, the parties hereto agree that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date shares of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will Restricted Stock may be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, Offer and not withdrawn, fewer than 90% of the Shares, then be acquired by Parent or Merger Sub shall, at pursuant to the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Offer.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as to form in promptly provide Parent with all material respects with information concerning the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact Company that is required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion included in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing before they are filed with the SEC or dissemination and disseminated to stockholders of the Companystockholders. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, shall consult with the Company and its counsel prior to responding to any such comments and shall provide the Company with copies of all such responses.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Pfizer Inc), Merger Agreement (Encysive Pharmaceuticals Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including five Business Days after the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the OfferOffer within the meaning of the applicable Regulations of the SEC. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and or accept for payment, and or pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A Annex B (any of which may be waived by Merger Sub Purchaser in its sole discretion, provided that, without the consent of the Company, Merger Sub shall Purchaser may not waive the Minimum Tender Condition or the condition set forth in paragraph (as defined in Exhibit A)b)(viii) of Annex B) and to the terms and conditions other provisions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th Business Day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(c)(6) under the Exchange Act). Merger Sub Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit AAnnex B in any manner materially adverse to the holders of shares of Company Common Stock, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for a period of not more than 10 Business Days beyond the expiration date that would otherwise be permitted under clause (i) of this sentence, if on the date of such extension less than 90% of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer, (iii) extend the Offer for any period required by any rule, regulationRegulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2iv) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason for a period as may of not more than 10 Business Days beyond the latest expiration date that would otherwise be requested by the Company not to exceed ten business days from such scheduled expiration datepermitted under clause (i), (ii) or (iii) of this sentence. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of America.
(c) On the date of the commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, Offer ("Schedule 14D-1") which shall will contain an offer to purchase and a form of the related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934Parent, as amended (the "Exchange Act")Purchaser, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and each of Parent and Merger Sub AGREEMENT AND PLAN OF MERGER Purchaser further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable Federal federal securities lawsLaws. The Parent and Purchaser agree to give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their the filing of the Offer Documents with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree Purchaser agrees to provide the Company and its counsel in writing with any comments Parent, Merger Sub or their Purchaser and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsthereof.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Tracor Inc /De), Merger Agreement (Gec Acquisition Corp)
The Offer. (a) Subject to the provisions conditions of this ---------- Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to, --- and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not may not, except as provided below, waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th business day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(e)(6) of the SEC). Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not not, except as provided in the next sentence, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (Aiii) in extend the event it Offer for any reason for a period of not more than 10 business days beyond the latest expiration date that would otherwise be entitled to terminate permitted under clause (i) or (ii) of this sentence (a "Parent ------ Extension Period"); provided that if Sub shall extend the Offer at pursuant to ---------------- this clause (iii), it shall waive during any scheduled expiration thereof due to Parent Extension Period all conditions of the failure of one or more of Offer set forth in Exhibit A other than the Minimum Tender Condition and the conditions set forth in the first sentence of the introductory paragraph or paragraphs (ad) or and (g) in Exhibit A; and (iv) if the option granted pursuant to Section 4 of the Company Stockholder Agreement is then exercisable, reduce the number of shares of Company Common Stock necessary to satisfy the Minimum Tender Condition (as defined in Exhibit A) to that number of shares which, together with the shares of Company Common Stock that may be purchased by Parent upon exercise of the option granted pursuant to Section 4 of the Company Stockholder Agreement, would represent at least a majority of the Fully Diluted Shares (as defined in Exhibit A). If any of the conditions of the Offer set forth in Exhibit A to be (other than the Minimum Tender Condition) is not satisfied or waived, it shall give the Company notice thereof and, at the request on any scheduled expiration date of the CompanyOffer, then, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which Sub shall not extend the Offer one or more times (the period of each such extension to be later than (xdetermined by Sub) December 31, 1997 or (y) for up to 30 days in the date on which the Company reasonably believes aggregate for all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementextensions, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- at the time of such extension any such condition is not reasonably capable of being satisfied by the date so chosen by the Company, and the Company may request and Merger Sub shall make further extensions of the Offer has not received a Company Takeover Proposal (as defined in accordance with the terms of this Section 1.1(a5.02(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date). Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Union Texas Petroleum Holdings Inc), Agreement and Plan of Merger (Atlantic Richfield Co /De)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article 11, then UTCSub shall, as promptly as practicable practicable, (but in no event later than the fifth business day from and including five Business Days after the date of the public announcement of the execution of this Agreement, Merger Sub shall), and Parent UTC shall cause Merger Sub UTCSub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) an offer to purchase all of the outstanding ICP Shares for a price of $11.75 in cash for each ICP Share, which offer shall be made in accordance with applicable Securities Laws and be subject only to the Offer Conditions (the "Offer", which definition shall include any permitted amendments to, or extensions of, the Offer). The Offer shall be made pursuant to the Offer Documents and shall contain the terms and conditions set forth in this Agreement. The obligation of UTCSub to, and of UTC to cause UTCSub to, commence the Offer. The obligation of Merger Sub to, conduct and of Parent to cause Merger Sub to, commence consummate the Offer and accept for payment, and pay for, any shares of Common Stock ICP Shares tendered (and not properly withdrawn) pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A Offer Conditions (any of which may be waived in whole or in part by Merger Sub UTCSub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub UTCSub expressly reserves the right right, subject to compliance with applicable Securities Laws, to modify the terms of the Offer, except that, without the express written consent of the CompanyICP, Merger Sub UTCSub shall not (i) reduce the number of shares of Common Stock ICP Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)price, (iii) modify or add to or modify the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder of this Section 1.1next sentence, extend change the OfferExpiry Time, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend amend, alter, add or modify waive any term of the Offer in any manner that is, in the opinion of ICP, acting reasonably, materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997ICP Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at the on any scheduled expiration date of the Offer any Offer, which shall initially be the Initial Expiry Time, all of the conditions to Merger Sub's obligation to purchase shares Offer Conditions have not been satisfied or waived, UTCSub shall, and UTC shall cause UTCSub to, unless in the reasonable judgment of Common Stock shall UTC all of the Offer Conditions cannot be satisfied, until such time as such conditions are satisfied or waived on or prior to December 15, 1999, from time to time, extend the Expiry Time for such period of time as is necessary to satisfy or fulfill such conditions, (iiB) UTCSub may extend the Offer for any period required by any rule, regulation, interpretation or position of any of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval Authorities applicable to the Offer. Merger Sub agrees that: (A) , or to permit ICP to cure any misrepresentation, breach or non-performance during the time period referred to in the event it would otherwise be entitled proviso to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs clause (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); Conditions, and (BC) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, UTCSub may extend the Offer for such period as may be requested by the Company up to ten (10) Business Days (but not to exceed ten business days from such scheduled expiration date. Subject beyond December 15, 1999) if there have been validly tendered (and not properly withdrawn) prior to the terms and conditions expiration of the Offer such number of ICP Shares that would constitute at least 80%, but less than 90%, of the issued and this Agreementoutstanding ICP Shares as of the date of determination. Subject only to the Offer Conditions, Merger Sub UTCSub shall, and Parent UTC shall cause Merger Sub UTCSub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately pay, as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the all ICP Shares will be validly tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, (and not properly withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997).
(b) On UTCSub will instruct the date depositary under the Offer to advise ICP, from time to time (but not less frequently than every two (2) Business Days until the day immediately prior to the Expiry Time and thereafter on an hourly basis, if requested by ICP and in such manner as ICP may reasonably request), as to the number of commencement of ICP Shares that have been tendered (and not properly withdrawn) under the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock The parties hereto agree that Merger Sub becomes obligated to purchase pursuant to UTC may make the Offer and through UTCSub but that UTC shall be liable to perform any ICP for the full performance by UTCSub of its other obligations pursuant to under this Agreement.
Appears in 2 contracts
Samples: Pre Acquisition Agreement (United Technologies Corp /De/), Pre Acquisition Agreement (International Comfort Products Corp)
The Offer. Provided that (ai) Subject this Agreement shall not have been terminated in accordance with Section 7.1 and (ii) none of the events set forth in Annex I hereto that would entitle the Buyer not to consummate the provisions of this AgreementOffer shall have occurred and be continuing, as promptly as practicable but in no event later than practicable, the fifth business day from and including the date Buyer shall (or shall cause a Subsidiary of the public announcement Buyer to) commence (within the meaning of this Agreement, Merger Sub shall, Rule 14d-2 under the Exchange Act) the Offer for any and Parent all of the Company Shares. In the event that the Buyer shall cause Merger Sub to, a Subsidiary of the Buyer to commence the Offer, each reference to the Buyer in this Article I and Annex I shall be deemed, where applicable, to refer to such Subsidiary. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence Each Company Share accepted by the Offer and accept for payment, and pay for, any shares of Common Stock tendered Buyer pursuant to the Offer shall be exchanged for the right to receive the Offer Price from the Buyer. The obligation of the Buyer to accept for payment and to pay for any Company Shares tendered shall be subject only to the satisfaction or waiver of: (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the Expiration Time and not withdrawn a number of Company Shares that, together with the Company Shares then owned by the Buyer and its Subsidiaries, represents at least ninety-five percent (95%) of the Outstanding Company Shares (the "MINIMUM CONDITION"); and (ii) the other conditions set forth in Annex I. The Buyer expressly reserves the right to increase the Offer Price, to waive any of the conditions to the Offer or to make any other changes in the terms and conditions of the Offer; PROVIDED, HOWEVER, that, unless previously approved by the Company in writing, no change may be made that: (1) decreases the Offer Price; (2) changes the form or combination of consideration to be paid in the Offer; (3) reduces the number of Company Shares to be purchased in the Offer; (4) amends the conditions set forth in Exhibit A (Annex I to broaden the scope of such conditions, add any of which may be waived by Merger Sub in its sole discretionadditional conditions, provided that, without the consent or otherwise amend any other material term of the Company, Merger Sub shall not waive the Minimum Condition (as defined Offer in Exhibit A)) and a manner materially adverse to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to Company Shareholders; (5) extends the Offer, but no such assignment shall relieve Parent except as provided in Section 1.1(b) or Merger Sub of its obligations hereunderin the next sentence; or (6) amends the Minimum Condition, except as provided in the next sentence. Merger Sub The Buyer expressly reserves the right to modify amend or waive the Minimum Condition to reduce the percentage of Outstanding Company Shares required to be validly tendered in accordance with the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood PROVIDED that the Company Buyer shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period of not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for 10 Business Days after any such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on amendment or prior to October 6, 1997waiver.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Offer Agreement (Hewlett Packard Co), Offer Agreement (Hewlett Packard Co)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth ten (10) business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any the "Offer Conditions"). The initial expiration date of which may the Offer shall be waived by Merger midnight, New York City time, on the 20th business day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub expressly reserves the right to, in its sole discretion, provided thatwaive, without the consent of the Companyin whole or in part, Merger Sub shall not waive the Minimum any Offer Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer; provided, except however, that, without the prior written consent of the CompanyCompany (unless the Company takes any action contemplated by Section 5.02(b)), Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) change, modify or waive the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AA or modify or change any Offer Condition in a manner materially adverse to any holders of Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend or otherwise change the expiration date of the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend otherwise amend, modify or modify supplement any term of the terms of the Offer in any manner materially adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding anything in this Agreement to the foregoingcontrary, Merger Sub may, in its discretion, without the consent of the Company, but subject to (A) without limiting Parent's or Sub's obligations under the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)following sentence, (i) extend the OfferOffer on one or more occasions for any period ending no later than the Termination Date, if at the on any then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfied, until such time as such conditions are satisfied or waived or and (iiB) extend the Offer for any period ending no later than the Termination Date required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Parent and Sub agrees that: (A) in the event it would otherwise be entitled to terminate agree that if not all of the Offer at Conditions are satisfied or, in Sub's sole discretion, waived on any then-scheduled expiration thereof due to the failure of one or more date of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedOffer, it shall give the Company notice thereof andthen, at the request of the Company, if provided that all such conditions are reasonably likely capable of being satisfied by the Termination Date and subject to be satisfied during the requested extension periodrights of Parent under Article VIII, Sub shall, and Parent shall cause Sub to, extend the Offer on one or more occasions, in consecutive increments of up to ten (10) business days each, for an aggregate period of time ending no later than the Termination Date that Parent reasonably believes is necessary for such conditions to be satisfied, until the earlier of (1) such time as such condition isconditions are satisfied; provided, or conditions arehowever, satisfied or waived and (2) the date chosen by the Company, which that Sub shall not be later than (x) December 31required to extend the Offer beyond the Termination Date. In any event, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall Offer may not be entitled terminated prior to make its expiration date (as such request if it is then in breach of this Agreement, expiration date may be extended and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer re-extended in accordance with the terms of this Section 1.1(a1.01(a); and (B) ), unless this Agreement is validly terminated in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateaccordance with Article VIII. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.01(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration date of the Offer; providedOffer (as it may be extended and re-extended in accordance with this Section 1.01(a)). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the "Offer Closing", however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the "Offer Closing Date". Sub expressly reserves the right to, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and "subsequent offering period" in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of accordance with Rule 14d-11 under the Shares will be tendered in Exchange Act following the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tenderedOffer Closing, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer Documents may, in Sub's sole discretion, provide for such number a reservation of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997right.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent and Sub all material respects with information concerning the requirements of Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the stockholders of the Company's stockholders, in each case as and to the extent required by applicable Federal securities lawsLaws. The Parent and Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Sub shall provide the Company a reasonable opportunity to review the and comment on such Offer Documents or response (including the proposed final version thereof), and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree shall give reasonable consideration to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer, and shall cause Sub to perform, on a timely basis, all of Sub's obligations under this Agreement.
(d) Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Sub is required to deduct and withhold with respect to perform the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or any provision of its other obligations pursuant state, local or foreign tax Law. To the extent that amounts are so withheld and paid over by Sub to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this AgreementAgreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Sub.
Appears in 2 contracts
Samples: Merger Agreement (Kosan Biosciences Inc), Merger Agreement (Bristol Myers Squibb Co)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with SECTION 8.1 and subject to the other provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including five (5) Business Days (as defined below) after the date of the public announcement of this Agreement, Merger Acquisition Sub shall, and Parent Purchaser shall cause Merger Acquisition Sub to, commence the Offer. The initial scheduled expiration date for the Offer shall be twenty (20) Business Days following the commencement of the Offer. The obligation of Merger Acquisition Sub to, and of Parent Purchaser to cause Merger Acquisition Sub to, commence the Offer and accept for payment, and pay for, any shares Shares of Company Common Stock properly tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit ANNEX A attached hereto (the "OFFER CONDITIONS"), any of which may be waived waived, in whole or in part, by Merger Sub Acquisition Sub, in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (discretion except as defined in Exhibit A)) and to the terms and conditions of this Agreementset forth below. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Acquisition Sub expressly reserves the right to modify the terms of the OfferOffer in a manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (i) waive or otherwise modify the Minimum Condition (as defined in ANNEX A attached hereto) so as to reduce the minimum number of shares Shares that Acquisition Sub will accept in the Offer to an amount constituting less than sixty-six and two-thirds percent (66 2/3%) of Common Stock subject to the Offeraggregate outstanding Shares, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Per Share Amount, (iii) modify or add impose any conditions to the conditions set forth Offer in Exhibit Aaddition to the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend reduce the maximum number of Shares to be purchased, or modify (vii) amend, add to or waive (except to the extent expressly permitted by this Agreement) any other term of the Offer in any a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares of Company Common Stock. Notwithstanding the foregoing, Merger Acquisition Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer if, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived but, in any event, Acquisition Sub shall not, without the prior written consent of the Company, extend the Offer beyond the Cut-Off Date (as defined in SECTION 8.1(b) hereof) or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.the
Appears in 2 contracts
Samples: Merger Agreement (Serengeti Eyewear Inc), Merger Agreement (Sunshine Acquisition Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but and provided that this Agreement shall not have been terminated in no event accordance with Section 9.1 and subject to the satisfaction or waiver of each of the conditions to the Offer set forth in Annex A to this Agreement (the "Offer Conditions"), not later than the fifth tenth (10th) business day from and including the date of the 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), Merger Sub shall, and Parent Acquiror shall cause Merger Sub to, to commence (within the Offer. The obligation meaning of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer at a price equal to the Common Stock Price for each and every share of Company Common Stock. The obligation of Merger Sub to consummate the Offer, 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 A. The initial time and expiration date of the Offer shall be 12:00 midnight Eastern Standard Time on the date that is the 20th business day following the commencement of the Offer (determined using Rule 14d-2 under the Exchange Act) (the "Scheduled Expiration Date" and any date to which the Offer is extended as permitted by Section 1.1(b) shall be referred to herein as the "Extended Expiration Date").
(b) Merger Sub expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer, provided, that without the prior written consent of Company (which consent will not be valid unless authorized by the Board of Directors of Company), no modification or change may be made which (i) decreases the consideration payable in the Offer (except as permitted by this Agreement), (ii) changes the form of consideration payable in the Offer (other than by adding consideration), (iii) changes the Minimum Condition, (iv) decreases the maximum number of shares of Company Common Stock sought pursuant to the Offer, (v) changes the material conditions to the Offer in a manner
(c) On the date of commencement of the Offer, Acquiror and Merger Sub shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO") with respect to the Offer which will comply in all material respects with the provisions of applicable federal securities laws, and will contain the ------------ rules offer to purchase relating to the Offer and regulations promulgated thereunder forms of related letters of transmittal and summary advertisement (such Schedule TO and the 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"). Acquiror shall deliver copies of the proposed forms of the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit Company at least 48 hours prior to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that filing such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed documents with the SEC for review and to be disseminated to the Company's stockholders, in each case as comment by Company and to the extent required by applicable Federal securities lawsits counsel. The Company and its counsel shall be given a reasonable opportunity not less than 48 hours to review any amendments and supplements to the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company's stockholders. Parent and Merger Sub agree to Acquiror shall provide the Company and its counsel in writing any comments Parentthat Merger Sub, Merger Sub Acquiror or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly and in any event not later than 24 hours after the receipt thereof. Each of such comments.
(c) Parent shall contribute to Company, Acquiror and Merger Sub on a timely basis shall promptly correct any information provided by it for use in the funds Offer Documents that shall have become false or misleading in any material respect and Acquiror and Merger Sub further agree to take all steps necessary to purchase any shares of Common Stock that Merger Sub becomes obligated cause the Schedule TO as so corrected to purchase pursuant be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Offer stockholders of Company, in each case, as and to perform any of its other obligations pursuant to this Agreementthe extent required by applicable federal securities laws.
Appears in 2 contracts
Samples: Merger Agreement (Kulicke & Soffa Industries Inc), Merger Agreement (Kulicke & Soffa Industries Inc)
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as reasonable practicable (but in no event later than the fifth business day from and including ten (10) Business Days) after the date of the public announcement execution of this AgreementAgreement by all parties hereto, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 promulgated under the Exchange Act, the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A Annex I (any the “Offer Conditions”). The Offer shall initially expire at 11:59 p.m. (New York City time) on the date that is twenty (20) Business Days following the commencement of which may be waived by the Offer (determined using Rule 14d-1(g)(3) promulgated under the Exchange Act). Merger Sub expressly reserves the right to waive, in its sole discretionwhole or in part, provided any Offer Condition or modify the terms of the Offer; provided, however, that, without the consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) amend, modify or add to waive the conditions set forth in Exhibit AMinimum Tender Condition, (iv) except as expressly provided in the remainder of this Section 1.11.1(a), extend or otherwise amend or modify the expiration date of the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend otherwise amend, modify or modify supplement any term of the terms of the Offer in any manner adverse to any holder of Common Stock or (vii) provide any “subsequent offering period” within the Company's stockholders. The initial expiration date shall be September 15, 1997meaning of Rule 14d-11 promulgated under the Exchange Act. Notwithstanding any other provision of this Agreement to the foregoing, Merger Sub may, without the consent of the Companycontrary, but subject to the Company's right parties’ rights to terminate this Agreement pursuant to Section 8.1(b)(ii)7.1 and Merger Sub’s right to waive any Offer Condition other than the Minimum Tender Condition, Merger Sub shall, and Parent shall cause Merger Sub to, (i) extend the Offer on one or more occasions, in consecutive increments of up to five (5) Business Days (or such longer period as the parties hereto may agree) each, if, at any then-scheduled expiration of the Offer, if at any Offer Condition (other than the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as each such conditions are condition shall have been satisfied or waived or waived, and (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. ; provided, however, that in no event shall Merger Sub agrees that: (A) in be required to extend the event it would otherwise be entitled Offer beyond the Termination Date. Notwithstanding any other provision of this Agreement to the contrary, but subject to the parties’ rights to terminate the Offer this Agreement pursuant to Section 7.1, if, at any then-scheduled expiration thereof due to the failure of one or more of the conditions set forth in Offer, each Offer Condition (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be shall have been satisfied or waivedwaived and the Minimum Tender Condition shall not have been satisfied, it shall give the Company notice thereof then Merger Sub may and, at the request of if requested by the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to, extend the Offer until by increments of seven (7) Business Days (or such other period as the earlier of (1) such time as such condition isparties hereto may agree); provided, or conditions arehowever, satisfied or waived and (2) that Merger Sub shall only be required to extend the date chosen by the CompanyOffer under this sentence on two occasions and; provided, which further, that Merger Sub shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled required to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by beyond the Company not to exceed ten business days from such scheduled expiration dateTermination Date. Subject to Upon the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the applicable expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a)). Acceptance for a period payment of shares of Common Stock by Merger Sub pursuant to and subject to the conditions of the Offer is referred to in this Agreement as the “Offer Closing.” The Offer may not be terminated prior to exceed ten business days its expiration date (as such expiration date may be extended and re-extended in no event ending after December 31accordance with this Section 1.1(a)), 1997unless this Agreement is validly terminated in accordance with Section 7.1. If this Agreement is terminated pursuant to Section 7.1, if Parent reasonably believes that as a result then, in each case, Merger Sub shall promptly (and, in any event, within twenty-four (24) hours of such extension 90% or more of termination), irrevocably and unconditionally terminate the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there Offer and Merger Sub shall have been tenderedpromptly return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, in accordance with Rule 14d-3 promulgated under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”), which shall contain include, as exhibits, an offer to purchase and a related letter of transmittal and transmittal, a summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents and exhibits included therein pursuant to which the Offer will be mademade (such Schedule TO and the documents attached as exhibits thereto, together with any amendments or supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent and Merger Sub all material respects with information requested by Parent and Merger Sub concerning the requirements of Company that is required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Offer Documents, and its counsel shall be given provide the Company with copies of all correspondence between Parent, Merger Sub and their respective Representatives, on the one hand, and the SEC, on the other hand. Parent and Merger Sub shall use their respective reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC with respect to the Offer Documents. Prior to the filing of the Offer Documents (or any amendment or supplement thereto) or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect thereto, Parent and Merger Sub shall provide the Company a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC propose comments on such document or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsresponse.
(c) Parent shall contribute provide, or cause to be provided, to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (MWI Veterinary Supply, Inc.), Merger Agreement (Amerisourcebergen Corp)
The Offer. (a) Subject to the provisions conditions of this Agreement---------- Agreement including those set forth in Annex B hereto, as promptly as practicable but in no event later than the fifth business day from and including five Business Days after the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the OfferOffer within the meaning of the applicable Regulations of the SEC. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and or accept for payment, and or pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A Annex B (any of which may be waived by Merger Sub Purchaser in its sole discretion, and reasonable judgment provided that, without the consent of the Company, Merger Sub shall Purchaser may not -------- waive the Minimum Condition (as defined in Exhibit A)Tender Condition) and to the terms and conditions other provisions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th Business Day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(e)(6) under the Exchange Act). Merger Sub Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit AAnnex B in any manner adverse to the holders of shares of Company Common Stock, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997shares of Company Common Stock. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived; provided, -------- however, that the expiration date shall not be later than the Termination Date ------- as a result of such extension, (ii) extend the Offer for a period of not more than 10 Business Days beyond the expiration date that would otherwise be permitted under clause (i) of this sentence, if on the date of such extension (x) less than 90% of the Fully Diluted Shares have been validly tendered and not properly withdrawn pursuant to the Offer and (y) Purchaser has permanently waived all of the conditions to the Offer set forth in Annex B (other than conditions that are not legally capable of being satisfied and conditions that have not been satisfied because of the willful or intentional action or inaction of the Company), and (iii) extend the Offer for any period required by any rule, regulationRegulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at If, on any scheduled expiration thereof due to date of the failure of one or more Offer, any of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, Annex B have not been satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such unsatisfied conditions will be satisfied (it are still capable of being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companysatisfied, the Company may request and Merger Sub shall make further extensions require Purchaser to extend the expiration date of the Offer in accordance with for a period of not more than 10 Business Days; provided, however, that Purchaser shall not be -------- ------- required to extend the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to later than the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateTermination Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) Notwithstanding anything to the contrary contained in this Agreement, Parent and Purchaser shall not be required to commence the Offer in any jurisdiction other than the United States of America.
(c) On the date of the commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, Offer ("Schedule 14D-1") which shall will contain an offer to purchase and a form of the -------------- related letter of transmittal and summary advertisement (such the Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub Purchaser, --------------- and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, respect and each of Parent and Merger Sub Purchaser further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable Federal federal securities lawsLaws. The Parent and Purchaser agree to give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their the filing of the Offer Documents with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree Purchaser agrees to provide the Company and its counsel in writing with any comments Parent, Merger Sub or their Purchaser and its counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsthereof.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Gec Acquisition Corp), Merger Agreement (Gec Acquisition Corp)
The Offer. (a) Subject to (i) Provided that this Agreement shall not have been terminated in accordance with ARTICLE IX and that none of the provisions events set forth in Paragraph 2 of this AgreementExhibit B hereto shall exist or have occurred, as Purchaser shall, and Parent shall cause Purchaser to, promptly as practicable (but in no event later than the fifth business day from and including ten Business Days following the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, ) commence (within the Offer. The obligation meaning of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "“Exchange Act"”)) the Offer to purchase all outstanding Shares, at the Offer Price. The obligations of Purchaser to, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first publishedof Parent to cause Purchaser to, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing accept for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if payment and to the extent that such information shall have become false or misleading in pay for any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase Shares tendered pursuant to the Offer and shall be subject to perform only those conditions set forth in Exhibit B (the “Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time in its sole discretion to waive any Offer Condition or modify or amend the terms of its other obligations the Offer, including an increase in the Offer Price, except that, without the prior written consent of the Company, Purchaser shall not (A) decrease the Offer Price or change the form of the consideration payable in the Offer, (B) decrease the number of Shares sought pursuant to this Agreementthe Offer, (C) amend or waive the Minimum Tender Condition (as defined in Exhibit B), (D) add to the conditions set forth on Exhibit B, (E) modify the conditions set forth on Exhibit B in a manner adverse to the holders of Shares, (F) extend the expiration of the Offer except as required or permitted by Section 1.1(a)(ii) or (iii), or (G) make any other change in the terms or conditions of the Offer which is adverse to the holders of Shares.
Appears in 2 contracts
Samples: Merger Agreement (Excel Technology Inc), Merger Agreement (Gsi Group Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth ten business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent and U.S. Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligation obligations of Merger Sub to, and of Parent and U.S. Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent A. The initial expiration date of the Company, Merger Sub Offer shall not waive be midnight New York City time on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-1(g)(3) of the OfferSecurities Exchange Act of 1934, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderas amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right right, in its sole discretion, to waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit AA or modify any condition set forth in Exhibit A in any manner adverse to the holders of the Company Common Stock, (iv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, in its sole discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in In addition, if at the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with any condition to the terms of this Section 1.1(a); and (B) in the event that Offer is not satisfied, Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyand Parent and U.S. Parent shall cause Merger Sub to, extend the Offer for one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company); provided, however, that Merger Sub shall not be required to, and Parent and U.S. Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. In addition, Merger Sub may and, if requested by the Company Company, Merger Sub shall, make available one or more “subsequent offering periods”, in accordance with Rule 14d-11 of the Exchange Act, of not to exceed less than ten business days from such scheduled expiration datedays. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent and U.S. Parent shall cause Merger Sub to, pay for (subject to any withholding of Tax pursuant to Section 2.02(h)) all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent, U.S. Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as promptly furnish to form in Parent, U.S. Parent and Merger Sub all material respects with information concerning the requirements of Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and to be set forth in the Offer Documents on the date first publishedor reasonably requested by Parent, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by U.S. Parent or and Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentstherein. Each of Parent, U.S. Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent, U.S. Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent, U.S. Parent and Merger Sub agree to shall provide the Company and its counsel in writing any comments that Parent, U.S. Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent, U.S. Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent, U.S. Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel, recognizing that the ultimate form and content of the Offer Documents and the response to any comments of the SEC will be the responsibility of Parent, U.S. Parent and Merger Sub.
(c) Parent and U.S. Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Cgi Group Inc), Merger Agreement (Stanley, Inc.)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable after the date of this Agreement (but in no event later than the fifth five business day from and including the date of days after the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent A. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition 20th business day following the commencement of the Offer (as defined in Exhibit A)determined using Rules 14d-1(g)(3) and to 14d-2 promulgated under the terms and conditions Securities Exchange Act of this Agreement1934, as amended (the "EXCHANGE ACT")). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to waive any condition to the Offer or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not and Parent shall not permit Sub to (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) waive or change the Minimum Tender Condition (as defined in Exhibit A), (iv) modify in any manner adverse to the holders of Company Common Stock or add to the conditions set forth in Exhibit A, (ivv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, Offer or (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at the scheduled or any extended expiration date of the Offer (whether extended pursuant to this clause (A) or otherwise) any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock are not satisfied or waived, extend the Offer for such period as Sub determines; PROVIDED that such extension shall be in increments of not be satisfied, until such time as such more than five business days if all of the conditions are set forth in Exhibit A other than the Minimum Tender Condition have been satisfied or waived at such scheduled or extended expiration date, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer and (C) if at the scheduled or any extended expiration date of the Offer less than 90% of the Fully Diluted Shares (as defined in order to obtain any material regulatory approval applicable to Exhibit A) have been validly tendered and not withdrawn in the Offer. Merger Sub agrees that: , extend the Offer for a period of not more than ten business days in the aggregate beyond the latest expiration date that would otherwise be permitted under clause (A) or (B) of this sentence. In addition, Sub may make available a "subsequent offering period", in accordance with Rule 14d-11 of the Exchange Act. In the event it would otherwise be entitled to terminate that the Offer Minimum Tender Condition has not been satisfied or waived at any the scheduled expiration thereof due to the failure of one or more date of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof andOffer, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodSub shall, and Parent shall cause Sub to, extend the expiration date of the Offer in such increments as Sub may determine until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2w) the date chosen by the Companysatisfaction or waiver of such condition, which shall not be later than (x) December 31Parent reasonably determines that such condition to the Offer is not capable of being satisfied on or prior to the Outside Date (as defined in Section 8.01(b)(i)), 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach termination of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the its terms of this Section 1.1(a); and (Bz) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOutside Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, shall accept for payment and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Parent and Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent or Sub to such comments.
(c) Prior to the expiration of the Offer, Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Alcon Holdings Inc), Merger Agreement (Summit Autonomous Inc)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and none of the provisions events set forth in paragraphs (a)-(g) of this AgreementAnnex A hereto shall have occurred or be existing, Purchaser shall commence the Offer as promptly as reasonably practicable after the date hereof, but in no event later than five business days after the fifth business day from and including the date of the initial public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, Purchaser's intention to commence the Offer. The Purchaser shall not, without the consent of the Special Committee, accept for payment any Shares tendered pursuant to the Offer unless at least a majority of the then issued and outstanding Shares, other than the Parent Shares, shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "First Minimum Condition"). In addition to the First Minimum Condition, the obligation of Merger Sub to, and of Parent Purchaser to cause Merger Sub to, commence the Offer and accept for payment, payment and pay for, any shares of Common Stock for Shares tendered pursuant to the Offer shall be subject only sub- ject (i) to the condition (the "Second Minimum Condition") that there shall have been validly tendered and not withdrawn prior to the expiration of the Offer at least the number of Shares that when added to the Parent Shares shall constitute not less than 90% of the then issued and outstanding Shares on a Fully Diluted Basis (as defined below) and (ii) to the satisfaction of the other conditions set forth in Exhibit Annex A hereto. Purchaser expressly reserves the right to waive any such condition (any of which may be waived by Merger Sub in its sole discretion, provided that, ex- cept the First Minimum Condition) without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to make any other changes in the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms condi- tions of the Offer; provided, except thathowever, without that no change may be made which decreases the consent of the CompanyPer Share Amount, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer, reduces the maximum number of Shares to be purchased in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of which imposes condi- tions to the Offer in any manner adverse addition to any of the Company's stockholdersthose set forth in Annex A hereto. The initial expiration date of the Offer shall be September 15mid- night on the 20th business day following commencement of the Offer. The foregoing notwithstanding, 1997. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to extend the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), Offer (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer, (ii) if at the initial expira- tion date any of the conditions to the Offer set forth in para- graphs (a) - (g) of Annex A have not been satisfied or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: waived, until such time as all of such conditions shall have been sat- isfied or waived, and (Aiii) in the event it would otherwise be entitled all of the conditions to terminate the Offer at any scheduled expiration thereof due to set forth in Annex A shall have been satisfied or waived, other than the failure First Minimum Condition or the Second Minimum Condition, for a period or periods aggregating not more than 20 business days after the later of one or more (A) the initial expi- ration date of the Offer and (B) the date on which all of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or - (g) of Exhibit Annex A shall have been satisfied or waived. If all of the conditions to be the Offer set forth in Annex A have been satisfied or waived, it shall give other than the Company notice thereof andSecond Minimum Condition, at then on the request later to occur of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or the initial expiration date of the Offer and (y) the latest expiration date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer permitted by the preceding sentence, Purchaser shall waive the Second Minimum Condition. The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in accordance with cash, upon the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely sub- ject to the failure conditions of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to the terms and conditions of the Offer and this Agreement(including, Merger Sub shallwithout limitation, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 First Minimum Condition and the documents and exhibits included therein pursuant to which the Offer will be madeSecond Minimum Condition), together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents Pur- chaser shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934pay, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly practicable after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.expiration
Appears in 2 contracts
Samples: Merger Agreement (Monsanto Co), Merger Agreement (Calgene Inc /De/)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but and in any event no event later than the fifth business day from and including the date of the public announcement of this AgreementOctober 9, 2014, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. ; provided that Parent and Merger Sub Subsidiary may at waive any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant conditions to the OfferOffer (other than the Minimum Tender Condition, but no such assignment shall relieve Parent or Merger Sub which may not be waived without the prior written consent of its obligations hereunder. Merger Sub expressly reserves the right to modify Company) and may make changes in the terms and conditions of the Offer, Offer except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject no change may be made to the Offerform of consideration to be paid, (ii) reduce the price per share of Common Stock to be paid pursuant to no decrease in the Offer (except pursuant to Section 3.4)Price or the number of Shares sought in the Offer may be made, (iii) modify no change which imposes additional conditions to the Offer or add to modifies any of the conditions set forth in Exhibit AAnnex A in any manner adverse to the holders of the Shares may be made, (iv) except as provided in the remainder of this Section 1.1, neither Parent nor Merger Subsidiary may extend the Offer, except in accordance with Section 2.1(c) and (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to the Company or any holder of the Company's stockholdersShares. The initial expiration date shall be September 15, 1997. Notwithstanding parties hereto agree to cooperate in good faith to modify the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date terms of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period and if required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 with respect TO (as amended and supplemented from time to time, the Offer“Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the Securities Exchange Act related letter of 1934transmittal and other appropriate documents (which documents, as amended (or supplemented from time to time, are referred to herein collectively as the "Exchange Act"“Offer Documents”), . Parent and the ------------ rules and regulations promulgated thereunder and Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities Laws. In conducting the Offer, Parent and the Merger Subsidiary shall comply with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required by the Exchange Act to be set forth in the Offer Documents or reasonably requested by Parent and Merger Subsidiary for inclusion therein The Company and its counsel shall be given a reasonable opportunity to review and comment on the date first publishedOffer Documents prior to their filing with the SEC, sent or given and Parent and Merger Subsidiary shall give reasonable and good faith consideration to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is comments made by the Company and its counsel. Parent and Merger Subsidiary agree to provide the Company and its counsel (i) any comments that may be received from the SEC or Merger Sub its staff (whether written or oral) with respect to information supplied by the Company in writing for inclusion Offer Documents promptly after receipt thereof and prior to responding thereto and (ii) a reasonable opportunity to participate in the Offer Documentsresponse of Parent and Merger Subsidiary to these comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the SEC. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsLaw.
(c) The initial scheduled expiration date of the Offer shall be midnight, New York City time, on the twentieth Business Day after (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) the date of its commencement (the initial “Expiration Date,” and if and only if the expiration time and date is extended as authorized in this Agreement, as so extended, the “Expiration Date”); provided, however, that Merger Subsidiary: (i) may, from time to time extend the Offer for one or more periods of up to 10 Business Days each (or such longer period as may be agreed to by the Company), if at the scheduled Expiration Date any of the conditions of the Offer, including the Minimum Tender Condition and the conditions and requirements set forth on Annex A (other than conditions which by their nature are to be satisfied at the closing of the Offer), shall not have been satisfied or waived, until such time as such conditions are satisfied or waived to the extent permitted by this Agreement or (ii) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall contribute cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the Expiration Date so long as the conditions and requirements set forth on Annex A have been complied with or validly waived. The Offer may not be terminated prior to its scheduled Expiration Date (as it may be extended in accordance with this Agreement) unless this Agreement is terminated in accordance with Section 8.1.
(d) Parent shall provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Dune Energy Inc), Merger Agreement (Eos Petro, Inc.)
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as practicable after the date hereof, but in no event later than the fifth business tenth calendar day from and including after the date of the first public announcement of the execution and delivery of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub toto commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (including the Offerrules and regulations promulgated thereunder, the “Exchange Act”)) the Offer to purchase for cash all Shares at the Offer Price. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares tendered and not validly withdrawn pursuant to the Offer shall be subject only to (i) the satisfaction of the Minimum Condition (as defined in Exhibit A hereto) and (ii) the satisfaction or waiver by Parent or Merger Sub of each of the other conditions set forth in Exhibit A hereto (any together with the Minimum Condition, the “Offer Conditions”). Each of which may be waived by Parent and Merger Sub expressly reserves the right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition or (C) modify any of the other terms or conditions of the Offer, except that, unless otherwise provided thatby this Agreement, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) Parent and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i1) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v2) change the form of consideration payable in the Offer (other than by increasing adding consideration), (3) reduce the cash offer pricenumber of Shares subject to the Offer, (4) impose additional conditions to the Offer, (5) waive or change the Minimum Condition, (6) add to the Offer Conditions, (7) extend or otherwise change the expiration time of the Offer except as required or permitted by Section 1.1(b) or (vi) 8) amend or modify any Offer Condition or any term of the Offer in any a manner that is, or would reasonably be expected to be, adverse to any the holders of Shares.
(b) The Offer shall expire at 5:00 p.m. (New York City time) on the date that is 21 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Company's stockholders. The initial expiration Offer (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date shall be September 15and time to which the Offer has been so extended (the Initial Expiration Date, 1997. or such later date and time to which the Initial Expiration Date has been so extended, the “Expiration Date”).
(c) Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but unless this Agreement has been terminated in accordance with Article VIII (and subject to the Company's each party’s right to terminate this Agreement pursuant to Section 8.1(b)(iiin accordance with Article VIII), the Offer shall be extended from time to time as follows:
(i) If, on or prior to any then scheduled Expiration Date, the Offer Conditions shall not have been satisfied or waived by Parent or Merger Sub if permitted hereunder and to the extent permitted by applicable Law, then Merger Sub shall (and Parent shall cause Merger Sub to) extend the Offer, if at the scheduled expiration date Offer for successive periods of up to ten Business Days each until the Offer any of the conditions to Conditions are satisfied or waived; provided, however, that Merger Sub's obligation to purchase shares of Common Stock Sub shall not be satisfied, until such time as such conditions are satisfied or waived or required to extend the Offer beyond the Outside Date.
(ii) Merger Sub shall extend the Offer for any period or periods required by any rule, regulationapplicable Law, interpretation or position of the Securities and Exchange Commission (or its staff) (the "“SEC"”) or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. NASDAQ Capital Market (“NASDAQ”).
(d) Merger Sub agrees that: (A) in the event it would otherwise be entitled to shall not terminate the Offer at prior to any scheduled expiration thereof due to Expiration Date without the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request prior written consent of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement except in the event that this Agreement is terminated in accordance with Article VIII. In the Company event that this Agreement is terminated in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companyaccordance with Article VIII, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to) promptly (and in any event within 24 hours of such termination), terminate the Offer. If the Offer is terminated by Merger Sub, or this Agreement is terminated prior to the purchase of Shares in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Shares to the registered holders thereof.
(e) Subject to the terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of Expiration Date or as soon as practicable following the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997valid tender thereof.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Omron Corp /Fi), Merger Agreement (Adept Technology Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but practicable, and in any event no event later more than the fifth business day from and including seven Business Days, after the date of the public announcement of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. ; provided that Parent and Merger Sub Subsidiary may at waive any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant conditions to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall Minimum Condition, which may not be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, waived without the prior written consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or may make changes in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreementexcept that, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to without the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request written consent of the Company, no change may be made to the form of consideration to be paid, no decrease in the Offer Price or the number of Shares sought in the Offer may be made, no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company ifOffer, except in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997accordance with Section 2.01(c).
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect TO (as amended and supplemented from time to time, the Offer“Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements provisions of applicable federal securities Laws, and shall contain the offer to purchase relating to the Offer and forms of the Securities Exchange Act related letter of 1934transmittal and other appropriate documents (which documents, as amended (or supplemented from time to time, are referred to herein collectively as the "Exchange Act"“Offer Documents”), . The Parent and the ------------ rules and regulations promulgated thereunder and Merger Subsidiary further agree to disseminate the Offer Documents to holders of Shares as and to the extent required by applicable federal securities Laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply in all material respects with the provisions of the Exchange Act and any other applicable Laws necessary to be complied with in connection with the Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and its counsel shall be given a reasonable opportunity to review and comment on the date first published, sent or given Offer Documents prior to their filing with the SEC. Parent and Merger Subsidiary agree to provide the Company's stockholders, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub oral) with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsDocuments promptly after receipt thereof and any responses thereto. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsLaw.
(c) The initial scheduled expiration date of the Offer shall be 20 Business Days after the date of its commencement. Notwithstanding the foregoing, Parent and Merger Subsidiary shall have the right to extend the Offer (i) from time to time if, at any scheduled or extended expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A hereto is not satisfied or waived as a result of the occurrence of any of the events described in subparagraph (b) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the written request of the Company if such conditions or condition could reasonably be expected to be satisfied on or before July 31, 2004, (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable Law, (iii) on one or more occasions (all such occasions aggregating not more than 20 Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents more than 50% but less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent’s decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (c) and (e) (excluding any wilful or intentional breach of any material obligation of the Company) on Annex A and of its right to terminate the Agreement under Sections 8.01(b), (d) (unless there has been a wilful or intentional breach of any material obligation by the Company), (i) or (j), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any extended expiration date of the Offer, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the “Subsequent Period”) pursuant to Rule 14d-11 of the Exchange Act.
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall contribute cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer.
(e) The Offer and to perform any Price may be increased by the Parent without the consent of its other obligations pursuant to this Agreementthe Company, in which case the Offer shall be extended, without the consent of the Company, as required by applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Forest Oil Corp), Merger Agreement (Wiser Oil Co)
The Offer. (a) Subject Upon the terms and subject to the provisions conditions of this AgreementAgreement (including ARTICLE VIII), as promptly as practicable (but in no event later than the fifth business day from and including the date of the public announcement of this AgreementAugust 20, 2010), Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer; provided, that the Company agrees that no shares of Company Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition “Offer Conditions”).
(as i) The initial Expiration Date (defined in Exhibit A)) shall be 12:00 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rules 14d-1(g)(3) and to 14d-2 under the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (D) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (other than by increasing E) extend the cash offer priceOffer except as provided in this Section 1.1 for a period of five (5) Business Days on each such occasion or (viF) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of Company Common Stock or that would reasonably be expected to prevent, materially delay or impair the Company's stockholders. The initial expiration date shall be September 15ability of Parent or Merger Sub to consummate the Offer, 1997. the Merger or the other Transactions.
(ii) Notwithstanding anything in this Agreement to the foregoingcontrary, Merger Sub (A) may, in its sole discretion (subject to the obligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), without the consent of the Company, but subject to extend the Company's right to terminate this Agreement pursuant to Section 8.1(b)(iiOffer on one or more occasions for a period of five (5) Business Days on each such occasion if, on any then-scheduled Expiration Date (defined in Exhibit A), (i) extend the Offer, if at the scheduled expiration date any of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Conditions shall not be satisfiedsatisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC") or ”), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: (A) in the event it would otherwise be entitled required to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, beyond the Outside Date or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 at any time that Parent or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it Merger Sub is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iii) In addition to the extension obligation set forth in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicableSection 1.1(a)(ii)(B); provided , Parent and Merger Sub agree that if -------- on any such condition scheduled Expiration Date of the Offer, the Minimum Tender Condition is not satisfied by but all of the date so chosen by the Companyother Offer Conditions set forth in Exhibit A are satisfied or, the Company may request and in Merger Sub’s sole discretion, waived, then Merger Sub shall, and Parent shall make further extensions cause Merger Sub to, on each of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any first two such scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companydates, extend the Offer for periods of five (5) Business Days on each such period as may occasion; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times, for five (5) Business Days on each such occasion, and in no event shall Merger Sub be requested by required to extend the Company not Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to exceed ten business days from such scheduled expiration date. Subject terminate this Agreement pursuant to ARTICLE VIII.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.soon as
Appears in 2 contracts
Samples: Merger Agreement (Endo Pharmaceuticals Holdings Inc), Merger Agreement (Penwest Pharmaceuticals Co)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit AOffer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend amend, waive or modify add any other term of the Offer in any manner adverse to any the Company or the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfied, satisfied or waived until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. , (iii) extend the Offer on one or more occasions for an aggregate period of not more than five business days beyond the scheduled or extended expiration date if as of such expiration date sufficient Shares have not been tendered in order for the Merger Sub agrees that: to be effected without a vote of the Company's shareholders pursuant to Section 450.1711 of the MBCA and (Aiv) in extend the event it Offer for any reason on one or more occasions for an aggregate period of not more than five business days beyond the latest expiration date that would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs permitted under clause (ai), (ii) or (giii) of Exhibit A to be this sentence. So long as this Agreement is in effect and the Offer Conditions have not been satisfied or waived, it Sub shall, and Parent shall give the Company notice thereof andcause Sub to, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend cause the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in expire. In the event that the Company delivers to Parent a Section 9.1(e) Notice (as defined in Section 9.1(e)), Sub shall extend the Offer to the earlier of (i) a date that is not earlier than seven business days following the date of such delivery, unless the Offer would otherwise not expire prior thereto, or (ii) the termination of this Agreement by the Company pursuant to Section 9.1(e). In the event that Parent delivers to the Company the notice contemplated in breach hereof or the conditions specified in paragraphs paragraph (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the CompanyExhibit A, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company to a date not to exceed ten earlier than two business days from following the end of the 20- day cure period contemplated in such scheduled expiration dateparagraph (d) or (e) or, if earlier, the date on which the breach or failure to perform or comply, as the case may be, is cured, unless the Offer would otherwise not expire prior thereto. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D- 1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders the shareholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Prior to the expiration of the Offer, Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the all funds necessary to purchase accept for payment, and pay for, any shares of Common Stock Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Scotsman Industries Inc), Merger Agreement (Kysor Industrial Corp /Mi/)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the SEC); provided, however, that the obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be is subject only to the conditions set forth in Exhibit A Annex 1 (any or all of which may (other than the Minimum Tender Condition) may, subject to the provisions hereof, be waived by Merger Sub in its sole discretionParent or Sub, provided that, without the consent subject to applicable Law). The initial expiration date of the Company, Merger Sub Offer (the EXPIRATION DATE) shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rules 14d-1 and 14d-2 promulgated by the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify reduce or waive the Minimum Tender Condition (defined in Annex 1), (iv) add to the conditions set forth in Exhibit AAnnex 1, (ivv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend or modify any term other condition of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer in increments of not more than ten business days each, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation interpretation, position or position request of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (C) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC). Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate the Offer at that any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Annex 1 is not satisfied or waived, it shall give waived at the Company notice thereof andscheduled Expiration Date, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodSub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of five business days each until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2v) the date chosen by that is 15 days after the Companyinitial Expiration Date, which shall not be later than (w) the satisfaction or waiver of such condition, (x) December 31the determination by Parent that such condition to the Offer is not capable of being satisfied on or prior to the date specified in Section 9.1(b)(ii)(B), 1997 provided that such inability to satisfy such condition is not due to any failure of Parent or Sub to perform in any material respect any covenant or agreement of Parent or Sub contained herein, or the material breach by Parent or Sub of any representation or warranty contained herein, (y) the termination of this Agreement in accordance with its terms and (z) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood specified in Section 9.1(b)(ii)(B); provided, however, that the Company Parent and Sub shall not be entitled required to make such request so extend the Expiration Date if it is then the failure to satisfy any condition set forth in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Annex 1 was caused by or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to resulted from the failure of the Minimum Condition Company to be satisfied, it shall, at the request perform in any material respect any covenant or agreement of the CompanyCompany contained herein, extend or the Offer for such period as may be requested material breach by the Company not to exceed ten business days from such scheduled expiration dateof any representation or warranty contained herein. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay accept for all payment shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as it is legally permitted to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997do so under applicable Law.
(b) On the date of commencement of the Offer, Sub shall, and Parent and Merger shall cause Sub shall to, file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"OFFER DOCUMENTS). The Offer --------------- Documents Company shall comply as to form cooperate fully in all material respects with the requirements preparation of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by and the Company in writing for inclusion in and its counsel shall be given a reasonable opportunity to review the Offer DocumentsDocuments before they are filed with the SEC. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent and Sub shall contribute to Merger Sub on a timely basis file with the funds necessary to purchase Commissioner of Commerce of the State of Minnesota any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant registration statement relating to the Offer and required to perform any of its other obligations be filed pursuant to this AgreementChapter 80B of the Minnesota Statutes and shall disseminate to the Company's stockholders via the Offer Documents the information set forth in any such registration statement to the extent and within the time period required by Chapter 80B of the Minnesota Statutes.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sapphire Expansion CORP), Merger Agreement (Retek Inc)
The Offer. (a) Subject Provided that the Company has fulfilled its obligation to the provisions of this Agreement, provide information to Parent and Merger Sub on a timely basis as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreementcontemplated by Section 2.1(e), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offer. meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as reasonably practicable after the date hereof.
(b) The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, purchase and pay for, for any shares of Common Stock Company Shares tendered pursuant to the Offer shall be subject only to (i) the Minimum Condition and (ii) the other conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderhereto. Merger Sub expressly reserves the right (but shall not be obligated) at any time or from time to modify time, in its sole discretion, to waive any such condition (other than the Minimum Condition), to increase the price per Company Share payable in the Offer, and to make any other changes in the terms and conditions of the Offer; provided, except thathowever, that without the prior written consent of the Company, Merger Sub shall not Company no change may be made that (i) reduce decreases the number of shares of Common Stock subject to price per Company Share payable in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer, (iii) reduces the maximum number of Company Shares sought to be purchased in the Offer, (iv) adds to the conditions to the Offer set forth in Annex A hereto, (v) extends the Offer other than by increasing the cash offer price) as set forth in this Section 2.1, or (vi) amend modifies or modify amends any term of condition to the Offer in any manner materially adverse to the holders of Company Shares.
(c) The Offer initially shall be scheduled to expire twenty (20) Business Days following (and including, if it is a Business Day, the day of) the commencement thereof (the “Expiration Date,” unless extended in accordance with this subsection (c), in which case any expiration time and date established pursuant to an authorized extension of the Company's stockholders. The initial expiration date Offer in accordance with the terms of this Agreement, shall be September 15, 1997the Expiration Date). Notwithstanding anything herein to the foregoingcontrary, Merger Sub may, without (i) at the consent written request of the Company, but subject shall, and Parent shall then cause Merger Sub to, from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, in increments of no more than ten (10) Business Days each, if at the initial or any subsequent scheduled expiration date Expiration Date of the Offer any of the conditions to Merger Sub's ’s obligation to purchase shares of Common Stock accept Company Shares for payment shall not be satisfiedsatisfied or waived, but each such condition is reasonably capable of being satisfied at or prior to the Outside Date, until such time as such conditions are satisfied or waived or to the extent permitted by this Agreement, (ii) shall, and Parent shall cause Merger Sub to, extend the Offer for any period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") , or the staff thereof thereof, applicable --- to the Offer, or (iii) may extend the Offer one time for up to five (5) Business Days if all of the conditions to Merger Sub’s obligation to accept for payment Company Shares are satisfied or waived, but the number of Company Shares validly tendered and not withdrawn pursuant to the Offer is less than ninety percent (90%) of the then outstanding Company Shares on a fully diluted basis at the otherwise scheduled Expiration Date. Notwithstanding the foregoing, no such extension provided for in this Section 2.1(c) shall extend the Offer beyond the Outside Date. In each of the above cases, Parent shall cause Merger Sub to extend the Offer from time to time in accordance with this Section 2.1(c) for the shortest time periods which it reasonably believes are necessary until consummation of the Offer if the conditions of the Offer shall not have been satisfied or waived, so long as this Agreement shall not have been terminated in order accordance with Article VIII hereof.
(d) The Per Share Amount shall, subject to obtain any material regulatory approval applicable withholding of Taxes, be net to the seller of Company Shares in cash, upon the terms and subject to the conditions of the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementshall, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions to, pay the Per Share Amount for all Company Shares validly tendered and not withdrawn promptly following the acceptance of the Offer Company Shares for payment in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration (the date thereof due solely to and time of acceptance for payment of such Company Shares, the failure “Acceptance Time”). If payment of the Minimum Condition Per Share Amount is to be satisfied, it shall, at made to a Person other than the request Person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, extend it shall be a condition of payment that the Offer certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the Person requesting such period as may be requested payment shall have paid all transfer and other Taxes required by reason of the Company not payment of the Per Share Amount to exceed ten business days from such scheduled expiration date. Subject a Person other than the registered holder of the certificate surrendered, or shall have established to the terms and conditions reasonable satisfaction of Merger Sub that such Taxes either have been paid or are not applicable.
(e) As promptly as practicable on the date of commencement of the Offer Offer, and conditioned on Company’s having fulfilled its obligation to provide information to Parent and Merger Sub on a timely basis as contemplated by this AgreementSection 2.1(e), Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which . The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents and exhibits included therein pursuant to which TO, the Offer will be madeto Purchase and such other documents, together with any all exhibits, supplements or and amendments thereto, being referred to herein collectively as the "“Offer Documents"”). The Merger Sub shall, and Parent shall cause Merger Sub to, use its reasonable best efforts to cause the Offer --------------- Documents to be disseminated to holders of Company Shares in all material respects to the extent required by applicable federal securities laws. Parent and Merger Sub shall use their reasonable best efforts to cause the Offer Documents to comply as to form in all material respects with the applicable requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsfederal securities laws. Each of Parent, Merger Sub and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended or supplemented corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersholders of Company Shares, in each case in all material respects as and to the extent required by applicable Federal federal securities laws. The Company shall as promptly as practicable furnish to Merger Sub or Parent all information concerning the Company that is required by applicable federal securities laws or reasonably requested by Merger Sub or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(e). Parent and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing Schedule TO before it is filed with the SEC or dissemination to stockholders of the CompanySEC. In addition, Parent and Merger Sub agree to provide the Company and its counsel (i) in writing with any comments comments, whether written or oral, Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and any written or oral responses thereto, and (ii) reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to the filing thereof with the SEC.
(cf) Parent shall contribute to Merger Sub If, between the date of this Agreement and the date on a timely basis the funds necessary to purchase which any shares of Common Stock that Merger Sub becomes obligated to purchase particular Company Share is accepted for payment and paid for pursuant to the Offer and Offer, the outstanding shares of Company Common Stock are changed into a different number or class of shares by means of any stock split, division or subdivision of shares, stock dividend, reverse stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to perform any of its other obligations pursuant to this Agreementsuch Company Share shall be appropriately adjusted.
Appears in 2 contracts
Samples: Merger Agreement (Blackbaud Inc), Merger Agreement (Convio, Inc.)
The Offer. Parent shall cause Purchaser to, and Purchaser shall, as soon as practicable after the date hereof, but in any event within five business days after the public announcement of the execution hereof, commence (awithin the meaning of Rule 14d-2(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act") the Offer for all of the outstanding Shares at a price equal to the Per Share Amount, net to the sellers thereof in cash, subject to the conditions set forth in Annex I hereto (the "Offer Conditions") including the Minimum Condition (as defined therein) and the termination provisions of Section 8 hereof. Purchaser shall consummate the Offer on the terms and subject to the conditions provided in this Section 1.
1. Subject to the provisions terms and conditions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent Purchaser to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock payment Shares tendered pursuant to the Offer shall be subject only to the satisfaction or waiver by Purchaser of the Offer Conditions. The Offer shall be made by means of an offer to purchase which shall contain as conditions only the Minimum Condition and the other conditions set forth in Exhibit A (any Annex I hereto, and, subject to the succeeding sentence, shall otherwise contain, and be entirely consistent with, the terms and conditions of which may be waived by Merger Sub the Offer as described in this Agreement. Each of Purchaser and Parent expressly reserves the right, in its sole discretion, to waive any such condition and make any other changes to the terms of the Offer, provided that, without the consent of the Company, Merger Sub neither Parent nor Purchaser shall not (i) amend or waive the Minimum Condition or the HSR Condition (as defined in Exhibit A5 herein)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share amend any other condition of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)as set forth herein or in Annex I hereto, (iii) modify or add to reduce the conditions set forth in Exhibit APer Share Amount, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable to be paid in the Offer (other than by increasing adding cash consideration), (v) reduce the cash offer price) maximum number of Shares to be purchased in the Offer, or (vi) amend or modify any other term of the Offer in any a manner adverse to any which, in the reasonable judgment of the Company's stockholders, is adverse to the holders of Shares. The initial expiration date Per Share Amount shall be September 15net to the sellers in cash, 1997without interest, subject to reduction only for any applicable federal back-up withholding taxes. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Article 8, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond the then-scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer), if at the then-scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase shares of Common Stock accept for payment and pay for the Shares shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived, and, at the request of the Company, Purchaser shall, subject to Parent's right to terminate this Agreement pursuant to Article 8, extend the Offer for additional periods up to but not later than September 30, 1998, unless the conditions not satisfied or earlier waived on the then-scheduled expiration date are one or more of the Minimum Condition or the conditions set forth in paragraphs (a), (c), (d) or (f) of Annex I hereto, provided that (x) if the only condition not satisfied is the Minimum Condition, the satisfaction or waiver of all other conditions shall have been publicly disclosed at least five business days before termination of the Offer and (y) if paragraph (a) or (f) of Annex I hereto has not been satisfied and the failure to so satisfy can be remedied, the Offer shall not be terminated unless the failure is not remedied within 30 calendar days after Parent has furnished the Company with written notice of such failure), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SECCommission") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2iii) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such an aggregate period as of not more than five business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected without a meeting of the Company's stockholders in accordance with Section 253 of the Delaware General Corporation Law (the "DGCL"). In addition, the Per Share Amount may be requested by increased without the Company not to exceed ten business days from such scheduled expiration dateconsent of the Company. Subject to the terms and conditions of the Offer, including the Offer Conditions, Purchaser shall accept for payment and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly Shares duly tendered and not withdrawn pursuant at the earliest time at which it is permitted to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration do so under applicable provisions of the OfferExchange Act; providedprovided that, howeveras set forth above, that notwithstanding Purchaser shall have the -------- ------- foregoing Parent mayright, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar daysfive business days notwithstanding the prior satisfaction of the Offer Conditions, in order to attempt to satisfy the requirements of Section 253 of the DGCL. It is agreed that the Offer Conditions other than the Minimum Condition and the condition relating to the termination or expiration of applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") as (the Company "HSR Condition") are solely for the benefit of Purchaser and may request. No such request shall be made asserted by Purchaser regardless of the Company ifcircumstances resulting in a condition not being satisfied (except for any action or inaction by Purchaser or Parent constituting a breach of this Agreement) or, except with respect to the Minimum Condition and the HSR Condition, may be waived by Purchaser, in whole or in part at any time and from time to time, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) discretion. On the date of commencement of the Offer, Parent and Merger Sub Purchaser, with the cooperation of, and prior review thereof by, the Company, shall file with the SEC Commission a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall Offer that will contain an offer to purchase or will incorporate by reference the Offer (or portions thereof) and a forms of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be madedocuments, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents Schedule 14D-1, and all amendments and supplements thereto, shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (the "Exchange Act")all applicable federal securities laws. Purchaser, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub Company with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents, agree promptly to correct the Schedule 14D-1 or the Offer 2 6 Documents if and to the extent that such information any of them shall have become false or misleading in any material respectrespect or any event occurs which should be set forth in an amendment or supplement to the Schedule 14D-1, and each of Parent and Merger Sub further agrees to Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended corrected or supplemented to be filed with the SEC Commission and such Offer Documents as so corrected to be disseminated to holders of Shares and any other holders of securities of the Company's stockholdersCompany (if any), in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. In addition, Parent and Merger Sub Purchaser agree to promptly provide the Company and its counsel in writing with any comments Parent, Merger Sub Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsstaff.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Bowne & Co Inc), Agreement and Plan of Merger (Bowne & Co Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of the terms of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. Unless earlier terminated in accordance with the provisions of this Agreement, the Offer shall not expire before 12:00 midnight on the date that is 20 business days from and including the date the Offer is commenced. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer shall be subject to the conditions set forth in clauses (a) through (h) set forth in Exhibit A (any of which may be waived by Sub in its sole discretion, and it being understood for all purposes of this Agreement that the fact that any condition specified in the first paragraph of Exhibit A shall not have been satisfied shall not, without more, constitute a failure of any other condition set forth in Exhibit A) and to the terms and conditions of this Agreement. The obligation of Sub to accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock Share to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next two sentences, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner materially adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Shares (as set forth in Exhibit A) shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain for any material regulatory approval period required by applicable to law and (iii) extend the Offer. Merger Sub agrees that: (A) in Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the event it latest expiration date that would otherwise be entitled permitted under clause (i) or (ii) of this sentence, if, on such expiration date, the number of Shares tendered (and not withdrawn) pursuant to terminate the Offer represents less than 90% of the Fully Diluted Shares (as defined in Exhibit A). Sub and Parent agree that if at any scheduled expiration thereof due to the failure of one or more date of the Offer the HSR Condition (as defined in Exhibit A) has not been satisfied, but at such scheduled expiration date all the other conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be shall have been satisfied or waived(other than the Minimum Tender Condition), it shall give the Company notice thereof and, Sub may (and at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, Company (confirmed in writing) shall) extend the Offer (a "Special Extension") from time to time until the earlier of (1) such time as such condition is, HSR Condition has been satisfied. In no event may the Company or conditions are, satisfied or waived and (2) Sub require that the Offer be extended to a date later than 270 days following the date chosen hereof by the Company, which shall not be Special Extensions or to a date later than (x) December 31, 1997 or (y) 180 days following the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- for any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateother reason. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct amend or supplement any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive have received from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Emersub Lxxiv Inc), Merger Agreement (Daniel Industries Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth five business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer to purchase all of the outstanding shares of Company Common Stock; provided, that the Company agrees that no shares of Company Common Stock owned by the Company or any Company Subsidiary will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 45th calendar day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rule 14d-1(g)(3) under the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) add to the Offer (other than by increasing the cash offer price) Conditions, or (viv) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of Company Common Stock.
(ii) Notwithstanding anything in this Agreement to the Company's stockholders. The initial expiration date shall be September 15contrary, 1997. Notwithstanding the foregoingand without limiting Parent’s or Merger Sub’s obligations under this Section 1.1(a)(ii), Merger Sub (A) may, in its sole discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for any period, if at the on any then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or, in Merger Sub’s sole discretion, waived, until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC") or ”), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: (A) in the event it would otherwise be entitled required to terminate extend the Offer at any scheduled expiration thereof due to (1) beyond the failure of one or more of the conditions set forth Outside Date (as defined in the first sentence of the introductory paragraph or paragraphs (aSection 8.1(b)(i)) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 at any time that Parent or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it Merger Sub is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right permitted to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs pursuant to ARTICLE VIII.
(diii) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request Parent and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event agree that Merger Sub would otherwise be entitled to terminate the Offer at if on any scheduled expiration date thereof due solely to the failure of the Offer, the Minimum Tender Condition to be satisfiedis not satisfied but all of the other Offer Conditions set forth in Exhibit A are satisfied or, it in Merger Sub’s sole discretion, waived, then Merger Sub shall, at the request of the Companyand Parent shall cause Merger Sub to, extend the Offer for such period as may a ten calendar day period; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than one time, and in no event shall Merger Sub be requested by required to extend the Company not Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to exceed ten business days from such scheduled expiration date. Subject terminate this Agreement pursuant to ARTICLE VIII.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a)). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; providedOffer is referred to in this Agreement as the “Offer Closing”, however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (up to 20 calendar daysas defined below) as the Company may request. No such request shall be made by the Company ifmay, in its Merger Sub’s sole judgmentdiscretion, it concludes that the Merger could be consummated on or prior to October 6, 1997provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light stockholders of the circumstances under which they were made, not misleading, except that no representation is made Company as and to the extent required by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsFederal securities laws. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the stockholders of the Company's stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable Federal securities laws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given a reasonable opportunity promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to review the filing of the Offer Documents and all amendments and supplements thereto prior to their filing (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company. , or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub agree to shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. In the event that Parent or Merger Sub receives any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after to such comments and (ii) take all other actions necessary to resolve the receipt of such commentsissues raised therein.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds consideration necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and shall cause Merger Sub to perform any fulfill all of its other Merger Sub’s obligations pursuant to under this Agreement.
(d) Parent, Merger Sub or the paying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 2 contracts
Samples: Merger Agreement (Indevus Pharmaceuticals Inc), Merger Agreement (Endo Pharmaceuticals Holdings Inc)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been validly terminated in accordance with its terms, as promptly as practicable but in no event later than the fifth business day from and including after the date of the public announcement of this Agreement, Merger Sub shall, and Parent AEP shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 promulgated by the SEC under the Exchange Act) the Offer. The obligation obligations of Merger Sub to, and of Parent AEP to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer shall be are subject only to (i) the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the non-waivable Minimum Tender Condition (as defined in Exhibit A)Annex I) and to (ii) the terms and other conditions set forth in Annex I (together with the Minimum Tender Condition, the “Offer Conditions”). The initial expiration date of this Agreementthe Offer shall be midnight, New York City time, on the 20th Business Day (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement of the Offer. Merger Sub may at any time transfer shall not, and AEP shall cause Merger Sub not to, terminate or assign to one or more corporations directly or indirectly wholly owned by Parent withdraw the right to purchase all or any portion Offer other than in connection with the termination of this Agreement in accordance with its terms. In the Shares tendered event that this Agreement is validly terminated pursuant to its terms, Merger Sub shall, and AEP shall cause Merger Sub to, promptly withdraw and terminate the Offer (and promptly after any termination or withdrawal of the Offer, but no such assignment shall relieve Parent or Merger Sub shall return, and shall cause any depository acting on behalf of its obligations hereunderMerger Sub to return, all tendered Shares to the registered holders thereof, in accordance with the terms of the Offer and applicable Law). Merger Sub expressly reserves the right to waive any condition to the Offer (other than the Minimum Tender Condition) or modify the terms of the Offer, except that, without the consent of the CompanySpecial Committee, Merger Sub shall not (iA) reduce the number of shares of Common Stock Shares subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant Offer Price, (C) add to the Offer (except pursuant Conditions or impose any other conditions to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (vD) amend, modify or supplement any Offer Condition or any term of the Offer set forth in this Agreement, in each case, in a manner adverse in a material respect to the holders of the Shares (other than AEP and its Affiliates), (E) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (viF) amend otherwise amend, modify or modify any term of supplement the Offer in any manner adverse in a material respect to any the holders of the Company's stockholders. The initial expiration date Shares (other than AEP and its Affiliates).
(b) Merger Sub shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, permitted to (without the consent of the Company, but subject to Company or of the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), Special Committee) and shall (and AEP shall cause Merger Sub to):
(i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; and
(Aii) in if, on the event it would otherwise be entitled to terminate initial expiration date or any subsequent date as of which the Offer at is scheduled to expire, any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition Condition is not satisfied by and has not been waived (to the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer extent waivable in accordance with the terms of this Section 1.1(aAgreement); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for on one or more occasions in consecutive increments of up to ten Business Days each (or such longer period as the Special Committee and AEP may agree), until such time as such Offer Conditions are satisfied; provided, however, that (1) Merger Sub shall not be requested by required to extend the Company Offer beyond the Outside Date or the termination of this Agreement in accordance with its terms and (2) if, at any date as of which the Offer is scheduled to expire, all of the Offer Conditions except for the Minimum Tender Condition are satisfied or have been waived (to the extent waivable in accordance with the terms of this Agreement), Merger Sub shall only be required to extend the Offer for one or more additional periods not to exceed an aggregate of ten business days from such scheduled expiration date. Subject to Business Days.
(c) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent AEP shall cause Merger Sub to, promptly after the expiration of the Offer, accept for payment and promptly (within the meaning of Rule 14e-1 under the Exchange Act) thereafter pay for for, all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after (the expiration “Acceptance Time”). AEP shall cause to be provided to Merger Sub all of the Offer; provided, however, funds necessary to purchase any Shares that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not Merger Sub becomes obligated to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in purchase pursuant to the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(bd) If, between the date of this Agreement and the Effective Time, the outstanding Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, then the Offer Price and the Per Share Merger Consideration, as applicable, shall be appropriately adjusted.
(e) On the date of commencement of the Offer, Parent AEP and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and shall, to the ------------ rules and regulations promulgated thereunder and extent required by applicable U.S. federal securities Laws, mail the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light holders of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Shares promptly after filing the Schedule TO with the SEC. AEP and Merger Sub with respect shall be entitled to information supplied by include the Special Committee Recommendation and the Company in writing for inclusion Board Recommendation in the Offer Documents. Each of ParentAEP and Merger Sub shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC or its staff with respect to the Offer Documents and each of AEP, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent AEP and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersholders of the Shares, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Company Company, the Special Committee and its their respective counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto a reasonable time prior to their filing such documents with the SEC or dissemination of such documents to stockholders holders of the Shares, and AEP, Merger Sub and their counsel shall consider in good faith any comments thereto made by the Company, the Special Committee or their respective counsel. Parent AEP and Merger Sub agree to shall (i) provide the Company Company, the Special Committee and its their respective counsel with any written comments Parentor requests (and inform them of any oral comments or requests) for additional information AEP, Merger Sub or any of their counsel representatives may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
comments or requests, (cii) Parent shall contribute provide to the Company, the Special Committee and their respective counsel a reasonable opportunity to review and comment upon any written responses thereto a reasonable time prior to responding to such comments or requests, (iii) consider in good faith any comments thereto made by the Company, the Special Committee or their respective counsel, and (iv) consult (to the extent practicable) with the Company, the Special Committee and/or their respective counsel prior to making any material oral responses or engaging in any material discussions with the SEC. AEP and Merger Sub on a timely basis shall use reasonable best efforts to permit the funds necessary Company, the Special Committee and/or their respective counsel to purchase any shares of Common Stock that participate with AEP and Merger Sub becomes obligated to purchase pursuant to or their representatives in any material discussions or meetings with the Offer and to perform any of its other obligations pursuant to this AgreementSEC.
Appears in 2 contracts
Samples: Merger Agreement (Federal-Mogul Holdings Corp), Merger Agreement (Icahn Enterprises L.P.)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Section 9.01 and none of the provisions of this Agreementevents set forth in Exhibit A shall have occurred and be continuing, as promptly as practicable but in no event later than the fifth business day from and including ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the SEC. The initial expiration date of the Offer shall be the twentieth (20th) Business Day following commencement of the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Offer Securities tendered pursuant to the Offer shall be subject only to the satisfaction of each of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive except that the Minimum Tender Condition (as defined in Exhibit A)may not be waived) and to the terms and other conditions of in this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the CompanyCompany (unless the Company takes any action permitted to be taken pursuant to Section 6.02(b)), Merger Sub shall not (i) reduce the number of shares of Common Stock Offer Securities subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to Offer Price, the Series D Offer (except pursuant to Section 3.4)Price or the Warrant Offer Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, Offer or (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger (i) Sub shall extend the Offer for one ten (10) Business Day period if the Minimum Tender Condition is not satisfied at the expiration of the initial twenty (20) Business Day Offer period and (ii) thereafter, Sub may, without the consent of the CompanyCompany and in its sole discretion, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer for successive extension periods (up until the Outside Date) not exceeding twenty (20) Business Days in the case of any single extension period: (A) if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Offer Securities are not be satisfied, until such time as such conditions are satisfied or waived or waived; and (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq National Market applicable to the Offer. Merger In addition, Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, may extend the Offer until the earlier after acceptance for payment of (1) such Offer Securities for a further period of time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration datetwenty (20) Business Days by means of a subsequent offering period under Rule 14d-11 under the Exchange Act. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock Offer Securities validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent . Sub may, in its sole discretionat any time, extend transfer or assign to one or more Subsidiary of Parent the expiration date right to purchase all or any portion of the Offer for a period not Securities tendered pursuant to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at but any scheduled expiration date prior to October 1, 1997, there such transfer or assignment shall have been tendered, and not withdrawn, fewer than 90% relieve Sub or Parent of the Shares, then Merger Sub shall, at the request of the Company, extend its respective obligations under the Offer or prejudice the rights of tendering securityholders to receive payment for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Offer Securities validly tendered and accepted for payment.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"" and to cause such Offer Documents to be disseminated to holders of Offer Securities in accordance with applicable Federal Securities laws). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of Exchange Act, the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsother Applicable Law. Each of Parent, Merger Sub and the Company agrees to use all reasonable efforts to respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer, and to promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Offer Securities, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto (including any amendment thereto) prior to their the filing thereof with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (I Stat Corporation /De/), Merger Agreement (I Stat Corporation /De/)
The Offer. (a) Subject to the provisions of Tender Offer Conditions (as defined below), and unless this AgreementAgreement shall have been terminated in accordance with Article VIII, Merger Sub shall, as promptly as practicable but and in no event later than the fifth ten (10) business day from and including days after the date hereof, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934 (the “Exchange Act”)) a tender offer to purchase all of the public announcement outstanding shares of Common Stock, par value $0.001 per share (“Common Stock”) of the Company (the “Shares”) at a price of $0.27 per Share in cash, net to the seller but subject to any required withholding of Taxes (as defined in Section 5.1(n)) applicable to the seller and not the Company, (such tender offer and price, as they may from time to time be amended in accordance with this Agreement, Merger Sub shall, the “Offer” and Parent shall cause Merger Sub to, commence the Offer“Offer Price,” respectively). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A Annex B (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Tender Offer Conditions”). The initial expiration time and date of the Company, Merger Sub Offer shall not waive be midnight (New York City time) on the Minimum Condition date that is twenty (20) business days (determined as defined provided in Exhibit A)Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer was commenced (the initial “Expiration Time,” and to the terms any expiration time and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered date established pursuant to an extension of the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderalso an “Expiration Time”). Merger Sub expressly reserves the right (x) to increase the Offer Price and (y) to waive any Tender Offer Condition or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to waive the conditions set forth Minimum Tender Condition (as defined in Exhibit AAnnex B), (iv) add to the Tender Offer Conditions or modify any Tender Offer Conditions in any manner adverse to the holders of Shares, (v) except as otherwise provided in the remainder of this Section 1.11.1(a), extend the Offer, or (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or provided that nothing in this clause (vi) amend or modify any term of the Offer in any manner adverse shall limit Merger Sub’s ability to any of the Company's stockholders. The initial expiration date shall be September 15, 1997provide additional consideration). Notwithstanding the foregoing, Merger Sub may, in its sole discretion, and without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer for one or more consecutive increments of not more than ten (10) business days each (the length of such period to be determined by Parent or Merger Sub), if at the any otherwise scheduled expiration date Expiration Time of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Tender Offer Conditions are not be satisfied, until such time as such conditions are satisfied or waived or waived; provided, however, that in no event will the Offer be extended beyond the Termination Date, (iiB) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or (C) make available a “subsequent offering period” in order to obtain any material regulatory approval applicable to accordance with Rule 14d-11 under the OfferExchange Act. In addition, Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Companyshall, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which make available a subsequent offering period in accordance with Rule 14d-11 under the Exchange Act of not less than ten (10) business days; provided that Merger Sub shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled required to make available such request if it is then a subsequent offering period in breach the event that, prior to the commencement of this Agreementsuch subsequent offering period, and that nothing in this Section 1.1 shall modify Parent's Parent and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof , directly or the conditions specified in paragraphs indirectly, own more than ninety percent (d) or (e90%) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateoutstanding Shares. Subject to On the terms and subject to the conditions of this Agreement (including the Tender Offer and this AgreementConditions), Merger Sub shall, and Parent shall cause Merger Sub to, pay accept for payment all shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer that as promptly as practicable after the Expiration Time (the time and date on which Merger Sub becomes obligated to purchase pursuant to accepts such Shares for payment, the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days “Acceptance Time”) and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer pay for such number of days (up to 20 calendar days) Shares as promptly as practicable following the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Acceptance Time.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Viking Systems Inc), Agreement and Plan of Merger (Conmed Corp)
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event event, subject to the Company having timely provided any information required to be provided by it pursuant to Section 1.1(e) and Section 1.2(c)), later than ten (10) Business Days after the fifth business day from and including the date of the initial public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. Offer within the meaning of the applicable rules and regulations of the SEC.
(b) The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and thereafter pay for, any shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any collectively, the “Offer Conditions”). The Offer shall initially be scheduled to expire at one minute after 11:59 p.m., New York City time, on the 20th business day (determined using Rule 14d-1(g)(3) of which may be waived by the Exchange Act) following the commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer. Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer in its sole discretionany manner not inconsistent with this Agreement, provided except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iv) waive, amend or modify the Minimum Tender Condition, the Regulatory Condition, the Absence of Legal Restraint Condition or the Termination Condition, (v) impose conditions or requirements to the Offer (other than by increasing the cash offer price) Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Shares (in their capacity as such), (vi) except as otherwise provided in this Section 1.1, terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vii) otherwise amend, modify or supplement any term of the terms of the Offer in any manner adverse to the holders of Shares or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without and Parent shall cause Merger Sub to, on the consent of the Company, but terms and subject to the Company's right to terminate Offer Conditions and conditions of the Offer and this Agreement pursuant to Section 8.1(b)(ii)Agreement, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be mutually agreed by Parent and the Company), if at the scheduled expiration date time of the Offer the Minimum Offer Condition or any of the conditions to Merger Sub's obligation to purchase shares of Common Stock other Offer Conditions shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or and (iiB) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees ; provided, however, that: (A) in , notwithstanding the event it would foregoing, if at the otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more time of the Offer, each Offer Condition (other than the Minimum Tender Condition and any conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A that by their nature are to be satisfied or waived, it shall give the Company notice thereof and, at the request expiration of the Company, if such conditions are reasonably likely to Offer and that would be capable of being satisfied during or waived by Parent were the requested extension period, extend expiration of the Offer until the earlier of (1to occur at such time) such time as such condition is, or conditions are, shall have been satisfied or waived and (2) the date chosen by the Company, which Minimum Tender Condition shall not be later than (x) December 31have been satisfied, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub and Parent shall make further extensions of have no obligation to extend the Offer in accordance such circumstances on more than three (3) occasions, with each such extension to be for ten (10) Business Days unless the terms of this Section 1.1(a)Company agrees otherwise in writing; and (B) provided further that in the event that no circumstances shall Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, or Parent extend the Offer for such period as may be requested by that the Company not to exceed ten business days from such scheduled expiration date. Subject to Acceptance Time would occur beyond the End Date.
(c) On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay (i) accept for payment all shares of Common Stock Shares validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer (and in any event prior to 8:00 a.m., New York City time, on the first Business Day starting at (if the expiration time occurs on a Business Day) or following (if the expiration time does not occur on a Business Day) the expiration time of the Offer; provided) (the time of such acceptance, however, that notwithstanding the -------- ------- foregoing Parent may“Acceptance Time”) and (ii) pay the Offer Price for such Shares promptly after (and, in any event, no later than the second Business Day after) the Acceptance Time.
(d) The Offer may not be terminated prior to its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that (as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1may be extended in accordance with this Section 1.1), 1997unless this Agreement is validly terminated in accordance with Section 7.1. If this Agreement is validly terminated in accordance with Section 7.1, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at and Parent shall cause Merger Sub to, immediately, irrevocably and unconditionally terminate the request of Offer, and Merger Sub shall neither acquire nor pay for Shares pursuant to the Company, extend Offer. If the Offer for such number is terminated or withdrawn by Merger Sub in accordance with the terms of days (up this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and Parent and Merger Sub shall cause any depository acting on behalf of Merger Sub to 20 calendar days) as return, all tendered Shares to the Company may requestregistered holders thereof. No such request Nothing contained in this Section 1.1 shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 7.1.
(be) On As promptly as reasonably practicable on the date of commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement tender offer statement on Schedule 14D-1 TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any exhibits, supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents ”) and shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Shares as and to the extent required by applicable U.S. federal securities Laws. The Company shall not contain any untrue statement of a material fact or omit furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaws. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after a Change of Recommendation, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or its staff or the dissemination thereof to the holders of Shares, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(cf) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any Offer.
(g) Without limiting the other provisions of its other obligations pursuant to this Agreement, if, between the date of this Agreement and the Acceptance Time, the outstanding Shares shall have been changed into a different number of shares or a different class of shares by reason of any stock dividend, subdivision, reorganization, reclassification, recapitalization, stock split, reverse stock split, combination, exchange of shares or other similar transaction, then the Offer Price shall be equitably adjusted, without duplication, to proportionally reflect such change.
Appears in 2 contracts
Samples: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
The Offer. (a) Subject to the provisions conditions of this ---------- Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the --- Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the written consent of the Company, Merger Sub shall may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be the Offer, but no such assignment shall relieve Parent or Merger Sub 20th business day following the commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(e)(6) of the SEC). Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit AA in any manner adverse to the holders of Company Common Stock, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for a period of not more than five business days beyond the initial expiration date of the Offer, if on the date of such extension the Minimum Tender Condition has been satisfied but less than 90% of the outstanding shares of Company Common Stock have been validly tendered and not properly withdrawn pursuant to the Offer, (iii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain and (iv) extend the Offer for any material regulatory approval applicable to reason for a period of not more than two business days beyond the Offer. Merger Sub agrees that: (A) in the event it latest expiration date that would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs permitted under clause (ai) or (giii) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied this sentence (it being understood that the Company shall Sub may not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by pursuant to this clause (iv) if it has previously extended the Company not Offer pursuant to exceed ten business days from such scheduled expiration dateclause (ii) of this sentence). Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Diatide Inc), Merger Agreement (Schering Berlin Inc)
The Offer. (a) Subject to the provisions last sentence of this AgreementSection 1.1(a), as promptly as practicable (but in no any event not later than the fifth five business day from and including the date of days after the public announcement of this Agreement, Merger Sub shall, the execution and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions delivery of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Parent will cause Purchaser to commence (iii) modify or add to within the conditions set forth in Exhibit A, (iv) except as provided in the remainder meaning of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Per Share Amount, net to the seller in cash (subject to reduction for any stock transfer taxes payable by the seller, if payment is to be made to a Person other than the Person in whose name the certificate for such Shares is registered, or any applicable federal back-up withholding), provided, however, that Parent may designate another direct or indirect subsidiary of Parent as the bidder thereunder (within the meaning of Rule 14d-1(e) under the Exchange Act"), in which event references herein to Purchaser will be deemed to apply to such subsidiary, as applicable. Notwithstanding the foregoing, if between the date of this Agreement and the ------------ rules and regulations promulgated thereunder and Effective Time the outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Per Share Amount will be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares. The obligation of Parent to cause Purchaser to commence the Offer, to consummate the Offer Documents on the date first published, sent or given and to the Company's stockholders, shall not contain any untrue statement of a material fact or omit accept for payment and to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing pay for inclusion Shares validly tendered in the Offer Documents. Each and not withdrawn in accordance therewith will be subject to, and only to, those conditions set forth in Annex A hereto (the "OFFER CONDITIONS").
(b) Without the prior written consent of Parentthe Company, Merger Sub Purchaser will not, and Parent will cause Purchaser not to, (i) decrease or change the Company agrees promptly to correct any information provided by it for use form of the Per Share Amount, (ii) decrease the number of Shares sought in the Offer, (iii) amend or waive the Minimum Condition (as defined in Annex A hereto) or impose conditions other than the Offer Documents if and Conditions on the Offer, (iv) extend the expiration date of the Offer (the "EXPIRATION DATE") (which will initially be 20 business days following the commencement of the Offer) except (A) as required by Law, (B) that, in the event that any condition to the Offer is not satisfied or waived at the time that the Expiration Date would otherwise occur, (1) Purchaser must extend the Expiration Date for an aggregate of 10 additional business days to the extent that necessary to permit such information shall have become false or misleading condition to be satisfied and (2) Purchaser may, in any material respectits sole discretion, extend the Expiration Date for such additional period as it may determine to be appropriate (but not beyond June 30, 1999) to permit such condition to be satisfied, and each (C) that, in the event that the OCC Condition (as defined in Annex A hereto) is not satisfied, and all other Offer Conditions have been satisfied or waived at the time that the Expiration Date (as extended pursuant to Section 1.1(b)(iv)(A) or (B)), would have otherwise occurred, Purchaser must either irrevocably waive the OCC Condition or extend the Expiration Date (but not beyond the date that is 60 calendar days from the date of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed filing with the SEC and to be disseminated to Office of the Company's stockholders, Comptroller of the Currency (the "OCC") in each case as and respect of the OCC Condition) to the extent required by applicable Federal securities laws. The Company and its counsel shall necessary to permit the OCC Condition to be given a reasonable opportunity to review satisfied, or (v) amend any term of the Offer Documents and all amendments and supplements thereto prior in any manner materially adverse to their filing Shareholders (including without limitation to result in any extension which would be inconsistent with the SEC or dissemination preceding provisions of this sentence), provided, however, that (1) subject to stockholders of applicable legal requirements, Parent may cause Purchaser to waive any Offer Condition, other than the Company. Parent Minimum Condition, in Parent's sole discretion and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to (2) the Offer Documents promptly after may be extended in connection with an increase in the receipt of such comments.
(c) Parent shall contribute consideration to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase be paid pursuant to the Offer so as to comply with applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). Except as set forth above and subject to perform applicable legal requirements, Purchaser may amend the Offer or waive any Offer Condition in its sole discretion. Assuming the prior satisfaction or waiver of its other obligations the Offer Conditions, Parent will cause Purchaser to accept for payment, and pay for, in accordance with the terms of the Offer, all Shares validly tendered and not withdrawn pursuant to this Agreementthe Offer as soon as practicable after the Expiration Date or any extension thereof.
Appears in 2 contracts
Samples: Merger Agreement (Federated Department Stores Inc /De/), Merger Agreement (Fingerhut Companies Inc)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article IX, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub Parent shall, and Parent or shall cause Merger Offer Sub to, commence an offer to acquire all outstanding shares of SRH Common Stock not owned, directly or indirectly, by the OfferCompany at a price of $72.00 per share of SRH Common Stock. Parent shall, and shall cause Offer Sub, to use its reasonable efforts to cause the Offer to be consummated at, or as soon as possible following, the Effective Time. The obligation of Merger Parent or Offer Sub to, and of Parent to cause Merger Sub to, commence consummate the Offer and to accept for payment, payment and to pay for, for any shares of SRH Common Stock tendered pursuant to the Offer thereto shall be subject only to the conditions set forth in Exhibit A Article VIII to this Agreement and to the prior or concurrent consummation of the Merger (any collectively, the "Offer Conditions"), which are for the sole benefit of which Parent and Offer Sub and may be asserted by Parent or Offer Sub regardless of the circumstances giving rise to any such condition, or waived by Merger Parent or Offer Sub in whole or in part at any time and from time to time in its sole discretion; provided, provided that, without that in no event shall Parent or Offer Sub purchase any shares of SRH Common Stock pursuant to the consent Offer if the Merger shall not have occurred or concurrently occur. The Company and SRH agree that no shares of SRH Common Stock held by the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all SRH or any portion of the Shares their respective Subsidiaries will be tendered to Parent or Offer Sub pursuant to the Offer, but no such assignment shall relieve . Parent or Merger and Offer Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except thatwill not, without the prior written consent of the CompanySRH, Merger Sub shall not (i) reduce decrease or change the number form of shares of Common Stock subject to the consideration payable in the Offer, (ii) reduce decrease the price per share number of shares of SRH Common Stock to be paid sought pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add impose additional conditions to the Offer or change the Offer Conditions (provided, that Parent or Investor in its sole discretion may waive any such conditions set forth and, in Exhibit Aconnection therewith, (ivsubstitute a less restrictive condition) except as provided in the remainder of this Section 1.1, extend the Offer, or (v) make any other change the form of consideration payable in the Offer (other than by increasing the cash offer price) terms or (vi) amend or modify any term conditions of the Offer in any manner which is materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997shares of SRH Common Stock. Notwithstanding the foregoing, Merger Sub Parent and SRH may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Company or SRH, (ix) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedhave been satisfied or waived, until such time as such all conditions are satisfied or waived or waived, (iixi) extend the Offer for any period required by any statute, rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval Governmental Authority applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2xii) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company any reason on one or more occasions for an aggregate of not to exceed ten more than 15 business days from such scheduled beyond the latest expiration datedate that would otherwise be permitted under clauses (x) and (xi) of this sentence. Subject to the Offer Conditions and the terms and conditions of the Offer and this Agreement, Merger Sub Parent shall, and Parent shall cause Merger Offer Sub to, accept for payment, and pay for for, all shares of SRH Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Transaction Agreement and Plan of Merger (Republic New York Corp), Transaction Agreement and Plan of Merger (HSBC Holdings PLC)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated and subject to the provisions of this Agreementterms hereof, as promptly as practicable practicable, but in no event later than the fifth five (5) business day from and including the date of days after the public announcement of this Agreementthe execution hereof by the parties, Merger Sub shall, Acquisition shall (and Parent shall cause Merger Sub Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer"Exchange Act")), the Offer for any and all of the Shares, at the Offer Price. The obligation of Merger Sub to, Acquisition to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Merger Sub to, commence the Offer and Acquisition to accept for payment, payment and to pay for, for any shares of Common Stock tendered pursuant to the Offer Shares tendered) shall be subject only to (i) the condition that at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested Company Stock Options (as defined in Section 3.2(a)) and unvested Company Stock Options that vest prior to the Final Date (as defined in Section 7.1), but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex A. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, no change may be made that (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A, (v) amends the conditions set forth in Exhibit Annex A to broaden the scope of such conditions, (vi) amends any other term of which the Offer in a manner adverse to the holders of the Shares, (vii) extends the Offer except as provided in Section 1.1(b), or (viii) amends or waives the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of Parent and Acquisition and may be waived by Merger Sub Parent and Acquisition, in its whole or in part at any time and from time to time, in their sole discretion, provided thatother than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent and Acquisition at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer.
(b) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) business days after the date the Offer is commenced; provided, however, that without the consent of the Company's Board of Directors (the "Company Board"), Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub Acquisition may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject from time to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; or (Aiii) in extend the event it Offer for any reason on one or more occasions for an aggregate period of not more than ten (10) business days beyond the latest expiration date that would otherwise be entitled to terminate permitted under clause (i) or (ii) of this sentence if on such expiration date there shall not have been tendered at least 90% of the Offer at outstanding Shares. Parent and Acquisition agree that, if any scheduled expiration thereof due to the failure of one or more of the conditions to the Offer set forth on Annex A are not satisfied and none of the events set forth in the first sentence of the introductory paragraph or paragraphs (a) or through (gf) of Exhibit Annex A that would permit Acquisition not to be satisfied or waived, it shall give the Company notice thereof and, accept tendered Shares for payment has occurred and is continuing at the request time of any scheduled expiration date of the CompanyOffer, if then, provided, that such conditions are reasonably likely to be satisfied during the requested extension periodcapable of being satisfied, Acquisition shall extend the Offer until the earlier of (1) such from time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- time unless any such condition is not no longer reasonably capable of being satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the or any such event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offerhas occurred; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will shall Acquisition be tendered in the Offer. If, at any scheduled expiration date prior required to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days beyond January 31, 2000 (up to 20 calendar daysprovided that if on January 31, 2000 the condition set forth in clause (ii) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent first paragraph of Annex A hereto regarding the HSR Act is not satisfied and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements none of the Securities Exchange Act events set forth in paragraphs (a) through (f) of 1934Annex A that would permit Acquisition not to accept Shares tendered for payment has occurred and is continuing, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.then
Appears in 2 contracts
Samples: Merger Agreement (Intel Corp), Merger Agreement (DSP Communications Inc)
The Offer. (a) On the date of commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act), Guarantor, Parent and Merger Sub filed with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) that incorporated by reference the Offer to Purchase and form of the related letter of transmittal, form of summary advertisement and such other customary documents included therein (the Schedule TO, the Offer to Purchase and such other documents pursuant to which the Offer is being made, the “Offer Documents”).
(b) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including three Business Days after the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Offer. The obligation offer to purchase (as so amended and supplemented, the “Offer to Purchase”) and the other Offer Documents, in each case in accordance with the terms of Merger Sub tothis Agreement, (as so amended and of Parent supplemented, the “Amended Offer Documents”), including to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to reflect the conditions set forth in Exhibit A Annex I (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)“Offer Conditions”) and to file with the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent SEC the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Amended Offer Documents.
(c) Merger Sub expressly reserves the right to modify (i) increase the Offer Price, (ii) waive any Offer Condition (provided, that Merger Sub will not waive the Minimum Condition without the prior written consent of the Company) and (iii) make any other changes in the terms and conditions of the Offer not inconsistent with the terms of this Agreement, in each case subject to extending the OfferOffer as required by applicable Law; provided, except thathowever, that unless otherwise provided by this Agreement, without the prior written consent of the Company, Merger Sub shall not (iA) reduce decrease the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (vB) change the form of consideration payable in the Offer Offer, (C) decrease the maximum number of Shares sought to be purchased in the Offer, (D) add to, or impose conditions to the Offer, other than by increasing the cash offer price) or Offer Conditions, (viE) amend or modify any term of the Offer Conditions or any of the terms of the Offer in any a manner adverse to any the holders of Shares or that would, individually or in the Company's stockholders. The initial expiration date shall aggregate, reasonably be September 15expected to prevent, 1997. Notwithstanding materially delay or impair the foregoingability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby, (F) waive or change the Minimum Condition (provided, that Merger Sub may, without at its sole discretion prior to the consent expiration of the CompanyOffer, but subject waive or change the Minimum Condition to remove the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)proviso in the definition of such term requiring that the calculation of the total outstanding voting power of the Shares be made on a fully-diluted basis; provided further, that Merger Sub (i) extend provides written notification of such determination to the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or Company and (ii) provides any notification or modification to the Amended Offer Documents with respect thereto, to the extent required by applicable Law, in each case at least five Business Days prior to any scheduled Expiration Date) or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. The Offer may not be withdrawn prior to the Expiration Date (or any Expiration Date, as extended pursuant to the terms of this Agreement), unless this Agreement is terminated in accordance with Article 8. Notwithstanding anything to the contrary in this Agreement, the Offer for Price shall be adjusted appropriately to reflect the effect of any period required by stock split, reverse stock split, stock dividend (including any ruledividend or distribution of securities convertible into Shares), regulationcash dividend, interpretation reorganization, recapitalization, reclassification, combination, exchange of shares or position other like change with respect to the Shares, occurring on or after the date of the Securities this Agreement and Exchange Commission (the "SEC") or the staff thereof applicable --- prior to the Offer or in order to obtain any material regulatory approval applicable Acceptance Time, and such adjustment to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due Price shall provide to the failure holders of one or more of Shares the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A same economic effect as contemplated by this Agreement prior to be satisfied or waivedsuch action; provided, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 sentence shall modify Parent's and Merger Sub's right be construed to terminate this Agreement in the event that permit the Company to take any action with respect to its securities that is in breach hereof or prohibited by the conditions specified in paragraphs terms of this Agreement.
(d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request Unless extended pursuant to and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and Agreement, the Offer shall initially be scheduled to expire at 11:59 p.m. (BNew York City time) on the date that is the later of (i) December 14, 2012 or (ii) the date that is five (5) Business Days following the date of filing with the SEC of the Amended Offer Documents (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, is referred to as the “Expiration Date”).
(e) The Offer shall be extended from time to time as follows:
(i) If on the scheduled Expiration Date, the Minimum Condition has not been satisfied or any of the other Offer Conditions have not been satisfied (other than conditions that by their nature are to be satisfied at any time prior the Offer Acceptance Time), or waived by Parent or Merger Sub if permitted hereunder, then prior to the then scheduled Expiration Date Merger Sub shall extend the Offer for one or more periods of not more than five (5) Business Days each (or such other number of Business Days as the parties may agree) and ending no later than the Outside Date in order to permit the satisfaction of such conditions (subject to the right of Merger Sub to waive any Offer Condition, other than the Minimum Condition (except as provided in Section 1.1(c)), in accordance with this Agreement); provided, that nothing in this Section 1.1(e)(i) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to Article 8 hereof; and
(ii) Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for any period or periods required by applicable Law, interpretation or position of the SEC or its staff or the New York Stock Exchange LLC (the “NYSE”) or its staff, in each case applicable to the Offer, provided that Merger Sub would otherwise shall not be entitled required to terminate extend the Offer at any scheduled beyond the Outside Date.
(f) Merger Sub may (and the Amended Offer Documents shall reserve the right of Merger Sub to) provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act (a “Subsequent Offering Period”) of not fewer than three (3) Business Days nor more than twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) immediately following the expiration date thereof due solely to the failure of the Minimum Condition to be satisfiedOffer; provided, it shall, that Merger Sub shall offer a Subsequent Offering Period of three (3) Business Days at the request of the CompanyCompany if, extend immediately following the Offer for such period as may expiration of the Offer, the Short Form Threshold has not been reached and cannot be requested by reached through the Company not to exceed ten business days from such scheduled expiration dateimmediate exercise of the Top-Up Option hereunder in accordance with its terms. Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Shares validly tendered during such Subsequent Offering Period as promptly as practicable after any such Shares are tendered and in any event in compliance with Rule 14e-1(c) under the Exchange Act. Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase and pay for any and all Shares that Merger Sub becomes obligated to accept for payment and purchase pursuant to the Offer and shall cause Merger Sub to fulfill all of Merger Sub’s covenants, agreements and obligations in respect of the Offer and this Agreement, in each case to the extent such covenants and payment obligations are to be performed or made at or prior to Closing. Parent and Merger Sub shall, and each of Parent and Merger Sub shall ensure that all of their respective Affiliates shall, tender any Shares held by them into the Offer.
(g) Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 8. In the event that this Agreement is terminated pursuant to the terms hereof, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares (i) promptly (and in any event within twenty-four (24) hours of Common Stock validly tendered such termination), irrevocably and unconditionally terminate the Offer, (ii) not withdrawn acquire any Shares pursuant to the Offer that and (iii) cause any depository acting on behalf of Merger Sub becomes obligated to purchase pursuant promptly return, in accordance with applicable Law, all tendered Shares to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(bh) On The Company shall cooperate fully in the date of commencement preparation of the Offer, Parent and Merger Sub shall file with Amended Offer Documents to reflect the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter terms of transmittal and summary advertisement (such Schedule 14D-1 this Agreement and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Amended Offer Documents and all amendments and supplements thereto prior to their filing before they are filed with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree that they shall cause the Amended Offer Documents and all exhibits, amendments or supplements thereto filed by either Parent or Merger Sub with the SEC to provide comply in all material respects with the Exchange Act and the rules and regulations thereunder and other applicable Laws. Without limiting the generality of the foregoing, the Company will furnish to the Parent and Merger Sub the information relating to it required by the Exchange Act to be set forth in the Amended Offer Documents, including in connection with communicating the Offer to the record and beneficial holders of the Shares. Each of Parent and Merger Sub shall use its counsel any reasonable best efforts to resolve all SEC comments with respect to the Amended Offer Documents as promptly as reasonably practicable after receipt thereof. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Amended Offer Documents which shall have become false or their counsel may receive misleading. Each of Parent and Merger Sub shall as soon as reasonably practicable notify the Company of the receipt of any comments from the SEC or its staff with respect to the Amended Offer Documents promptly after and any request by the receipt SEC for any amendment to the Amended Offer Documents or for additional information and shall provide the Company with copies of all such comments.
comments and correspondence. Prior to filing or mailing the Amended Offer Documents (cor any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, each of Parent shall contribute to and Merger Sub on shall provide the Company a timely basis the funds necessary reasonable opportunity to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer review and to perform any propose comments on such document or response and shall, in good faith, consider and incorporate the reasonable comments of its other obligations pursuant to this Agreementthe Company.
Appears in 2 contracts
Samples: Merger Agreement (Reckitt Benckiser Group PLC), Merger Agreement (Schiff Nutrition International, Inc.)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the Offer. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived in whole or in part by Merger Sub Purchaser in its sole discretion), provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub Purchaser expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the CompanyCompany or as expressly permitted by this Agreement, Merger Sub Purchaser shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Per Share Amount, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this following sentence or in Section 1.11.01(b), extend the term of the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify make any term of the Offer in any manner other modifications that are otherwise materially adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at term of the Offer beyond any scheduled expiration date of the Offer if, at any such scheduled expiration date, any of the conditions to Merger SubPurchaser's obligation to purchase accept for payment, and pay for, shares of Company Common Stock tendered pursuant to the Offer shall not be satisfied, until such time as such conditions are have been satisfied or waived or (iiprovided, however, that Purchaser may extend the Offer under this clause (A) on not more than one occasion and for not more than ten business days on such occasion) and (B) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or any other applicable Law.
(b) Notwithstanding any other provision contained herein, including, without limitation, Section 1.01(a), in order to obtain the event the Minimum Condition (as defined in Exhibit A) is not satisfied on any material regulatory approval applicable to scheduled expiration date of the Offer. Merger Sub agrees that: , the Purchaser may either (x) extend the Offer pursuant to clause (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first last sentence of the introductory paragraph or paragraphs (aSection 1.01(a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) amend the Offer to provide that, in the event (i) the Minimum Condition is not satisfied at the next scheduled expiration date of the Offer (after giving effect to the issuance of any shares of Company Common Stock theretofore issued under the Stock Option Agreement) and (ii) the number of shares of Company Common Stock tendered pursuant to the Offer and not withdrawn as of such next scheduled expiration date is more than 50% of the then outstanding shares of Company Common Stock, Purchaser must waive the Minimum Condition and amend the Offer to reduce the number of shares of Company Common Stock subject to the Offer to 49.9% of the shares of Company Common Stock then outstanding (the "Revised Minimum Number") and, if a greater number of shares is tendered into the Offer and not withdrawn, purchase, on which a pro rata basis, the Company reasonably believes all such conditions will be satisfied Revised Minimum Number of shares (it being understood that the Company Purchaser shall not in any event be entitled required to make such request accept for payment, 9 3 or pay for, any shares of Company Common Stock if it is then less than the Revised Minimum Number of shares are tendered pursuant to the Offer and not withdrawn at the expiration date).
(c) The Per Share Amount shall, subject to applicable withholding of taxes, be net to the seller in breach of this Agreementcash, upon the terms and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right subject to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided. Parent shall provide or cause to be provided to Purchaser on a timely basis the funds necessary to pay for any shares of Company Common Stock that Purchaser becomes obligated to accept for payment, howeverand pay for, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not pursuant to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(bd) On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Purchaser agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents and, on the date filed with the SEC and when first published, sent or given to the Company's stockholdersshareholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub Purchaser with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsDocuments or incorporated therein by reference to any statement, report or other document filed by or on behalf of the Company with the SEC. Each of Parent, Merger Sub Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders shareholders of the Company. Parent and Merger Sub Purchaser agree to provide the Company and its counsel any comments Parent, Merger Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel an opportunity to participate in the response of Parent and/or Purchaser to such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Ebv Electronics Inc), Merger Agreement (Wyle Electronics)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall amend the Offer to reflect this Agreement and amend the conditions to the Offer in no event later than the fifth business day from and including the accordance herewith. The expiration date of the public announcement Offer shall be the tenth day, other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (each a "BUSINESS DAY"), from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, Merger Sub shalldated August 8, 2002 and contained in the Schedule TO, and Parent shall cause Merger Sub toa related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, commence together with any supplements or amendments thereto, the Offer"OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Merger Parent and Sub in its sole their reasonable discretion, provided that, without the consent of the Company, Merger except that Parent and Sub shall not waive the Minimum Condition (as defined in Exhibit A)without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger and Sub expressly reserves reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Parent and Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Price; (iii) modify amend or add to the conditions set forth in Exhibit A, Offer Conditions; (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, ; (v) change the form of or reduce the consideration payable in the Offer (other than by increasing the cash offer price) Offer; or (vi) amend or modify any other term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Stockholders. Notwithstanding the foregoing, Merger Parent and Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SECCOMMISSION") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; (Aiii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason on one or more occasions for an aggregate period as may be requested by of not more than 10 Business Days beyond the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% this sentence; or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, (iv) extend the Offer for such number one or more subsequent offering periods of days (up to an additional 20 calendar days) as Business Days in the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein aggregate pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "ACCEPTANCE DATE"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) As promptly as practicable after this Agreement is executed by Parent, Sub and the ------------ rules Company, Parent and regulations promulgated thereunder Sub shall file with the Commission an amendment to the Schedule TO. The Schedule TO shall reflect the terms of this Agreement, amend the conditions to the Offer in accordance herewith and contain the Offer Documents. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except ; provided that no representation covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing or any Company Stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended or supplemented corrected, to be filed with the SEC Commission and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersCompany Stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC Commission or dissemination to stockholders of the CompanyCompany Stockholders. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff Commission with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Omnicare Inc), Merger Agreement (Omnicare Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add impose any other conditions to the conditions set forth in Exhibit AOffer other than the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend amend, waive or modify add any other term of the Offer in any manner adverse to any the Company or the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer and (iii) extend the Offer for any reason for one or in order to obtain any material regulatory approval applicable to more occasions for an aggregate period of not more than 10 business days beyond the Offer. Merger Sub agrees that: (A) in the event it latest expiration date that would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs permitted under clause (ai) or (gii) of Exhibit A to be this sentence. So long as this Agreement is in effect and the Offer Conditions have not been satisfied or waived, it Sub shall, and Parent shall give the Company notice thereof andcause Sub to, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend cause the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateexpire. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated is permitted to purchase accept for payment under applicable law, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D- 1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Prior to the expiration of the Offer, Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the all funds necessary to purchase accept for payment, and pay for, any shares of Common Stock Shares that Merger Sub becomes obligated is permitted to purchase accept for payment under applicable law and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aon Corp), Merger Agreement (Alexander & Alexander Services Inc)
The Offer. (a) Subject to the provisions of this AgreementAgreement and provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in ANNEX I hereto, Parent shall cause the Purchaser to, as promptly as reasonably practicable after the date hereof, but in no event later than five (5) business days following the fifth business day from and including the date of the initial public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, the Purchaser's intention to commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence (within the meaning of Rule 14d-2(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer and accept for paymentall of the outstanding Shares at a price of $18.00 per Share, and pay for, any shares of Common Stock tendered pursuant net to the Offer shall be seller in cash, subject only (i) to a minimum of 2,649,538 Shares (or such other number of Shares, when added to the conditions set forth in Exhibit A (number of Shares already owned by Parent, the Purchaser or any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition direct or indirect wholly owned Subsidiary (as defined in Exhibit ASection 1.3(a)) and of Parent, as shall constitute a majority of the Company's Fully Diluted Shares (as defined in Section 4.2) (the "Minimum Shares") being validly tendered prior to the terms expiration or termination of the Offer and not withdrawn (the "Minimum Share Condition") and (ii) to the other conditions of this Agreement. Merger Sub to the Offer set forth in ANNEX I. The Purchaser may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the OfferOffer (the "Tendered Shares"), but no such assignment shall relieve Parent or Merger Sub the Purchaser of its obligations hereunder. Merger Sub The Purchaser expressly reserves the right to waive any of the conditions to the Offer set forth in ANNEX I and to modify the terms and conditions of the Offer; PROVIDED, HOWEVER, that, without the prior written approval of the Company, the Purchaser shall not amend or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not Offer to (i) reduce the number of shares of Common Stock subject cash price to be paid pursuant to the Offer, (ii) reduce the price per share number of Common Stock Shares as to be paid pursuant to which the Offer (except pursuant to Section 3.4)is made, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable to be paid in the Offer Offer, (iv) modify or waive the Minimum Share Condition, or (v) impose conditions to its obligation to accept for payment or pay for the Tendered Shares other than by increasing the cash offer price) or (vi) amend or modify any term of the those set forth in ANNEX I. The Offer in any manner adverse to any of may not be extended without the Company's stockholders. The prior written consent; PROVIDED, HOWEVER, that the Purchaser may extend (and re-extend) the Offer for up to a total of 20 business days if, as of the initial expiration date date, which shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent 20 business days following commencement of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock there shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock have been validly tendered and not withdrawn pursuant that number of Shares necessary to permit the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for be effected without a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request meeting of the Company, extend 's stockholders in accordance with the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997DGCL.
(b) On As soon as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub the Purchaser shall file with the SEC Securities and Exchange Commission ("SEC") a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain or shall incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein or incorporated therein by reference pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and the Purchaser agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder thereunder, and, on the date filed with the SEC and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub the Purchaser with respect to information supplied by the Company in writing for inclusion or any of its representatives which is included in the Offer Documents. Each of Parent, Merger Sub the Purchaser and the Company agrees promptly to correct promptly any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respectmisleading, and each of Parent and Merger Sub the Purchaser further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub the Purchaser agree to provide the Company and its counsel any comments Parent, Merger Sub the Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent Subject to the terms and conditions of the Offer, the Purchaser shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pay for Shares which have been validly tendered and not withdrawn pursuant to the Offer and to perform any as promptly as practicable following expiration of its other obligations pursuant to this Agreementthe Offer.
Appears in 2 contracts
Samples: Merger Agreement (Andros Inc), Merger Agreement (Andros Acquisition Inc)
The Offer. (a) Subject to Provided that: (x) this Agreement shall not have been terminated in accordance with Article V and (y) the provisions Company shall have complied with its obligations under Section 1.3, as promptly as reasonably practicable, and in any event within 10 days of the date of this Agreement, Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as promptly as practicable but in no event later than the fifth business day from and amended (including the date of rules and regulations promulgated thereunder, the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence “Exchange Act”)) the Offer. The obligation of Merger Sub to, and obligations of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer , including (i) the satisfaction of the Minimum Condition (as defined in Exhibit A hereto) and (ii) the satisfaction or assign to one or more corporations directly or indirectly wholly owned waiver by Parent the right to purchase all or any portion of each of the Shares tendered pursuant to other conditions set forth in Exhibit A hereto (together with the OfferMinimum Condition, but no such assignment shall relieve the “Offer Conditions”). Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to (A) increase the Offer Price, (B) waive any Offer Condition (other than the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the number of Shares issued and outstanding, or the Antitrust Condition) or (C) modify any of the other terms or conditions of the Offer not inconsistent with the terms of the Offerthis Agreement, except that, without the consent of the Company, Merger Sub Parent shall not (i1) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v2) change the form of consideration payable in the Offer (other than by increasing adding cash consideration), (3) reduce the cash offer price) number of Shares sought in the Offer or (vi4) add to the Offer Conditions, (5) amend or modify any term of the Offer Conditions in any a manner adverse that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or impair the ability of Parent to consummate the Offer, or (6) change or waive the Minimum Condition, if the validly tendered and not withdrawn number of Shares, together with the Shares, if any, then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the Company's stockholdersnumber of Shares issued and outstanding, or the Antitrust Condition, (7) extend or otherwise change the Expiration Date in a manner other than as required or permitted by Section 1.1(b) of this Agreement or (8) provide any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act. For the avoidance of doubt, the Company will procure that no Share held in the treasury of the Company or any of its Subsidiaries immediately prior to the Acceptance Time (collectively, “Excluded Shares”) will be tendered pursuant to the Offer.
(b) The initial Offer shall expire at one minute after 11:59 p.m. Eastern Time on the date that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer, unless otherwise agreed to in writing by Parent and the Company (such date or such subsequent date to which the expiration date shall be September 15of the Offer is extended in accordance with the terms of this Agreement, 1997the “Expiration Date”). Notwithstanding anything to the foregoingcontrary contained in this Agreement, Merger Sub but subject to the parties’ respective termination rights under Section 5.1: (i) if, as of the then-scheduled Expiration Date, any Offer Condition has not been satisfied or waived, Parent may, in its discretion (and without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(iiCompany or any other Person), (i) extend the OfferOffer on one or more occasions, if at the scheduled expiration date for an additional period of the up to 10 Business Days per extension, to permit such Offer any of the conditions Condition to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or ; (ii) Parent shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval rules of the Nasdaq Global Market (“Nasdaq”) applicable to the Offer. Merger Sub agrees that: ; and (Aiii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof andif, at the request then-scheduled expiration time of the CompanyOffer, if such conditions are reasonably likely the Company brings or shall have brought any action in accordance with Section 6.10 to enforce specifically the performance of the terms and provisions of this Agreement by Parent, the Expiration Date shall be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than extended (x) December 31, 1997 for the period during which such action is pending or (y) by such other time period established by the date on which court presiding over such action, as the Company reasonably believes all such conditions will case may be; provided, however, that in no event shall Parent be satisfied required to extend the Offer beyond the earliest to occur of (it being understood that x) the Company shall not be entitled to make such request if it is then in breach valid termination of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companycompliance with Article V, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (By) in the event that Merger Sub would otherwise be entitled to terminate first day immediately following October 31, 2023 (the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. “Outside Date”).
(c) Subject to the terms and conditions of this Agreement, including the satisfaction or waiver of all of the Offer Conditions, Parent will irrevocably accept for payment (the time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as promptly as practicable after the Expiration Date in accordance with Section 1.6(a), provided, that with respect to Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Parent shall be under no obligation to make any payment for such Shares unless and until such Shares are delivered in settlement or satisfaction of such guarantee. Without limiting the generality of the foregoing, Parent shall provide on a timely basis the funds that are necessary to pay for any and all Shares that Parent becomes obligated to purchase pursuant to the Offer and this Agreement. For the avoidance of doubt, Merger Sub shall, and Parent shall cause Merger Sub to, not accept for payment or pay for all shares any Shares if, as a result, Parent would acquire less than the number of Common Stock Shares necessary to satisfy the Minimum Condition. The Offer Price payable in respect of each Share validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated shall be paid, without interest, net to purchase the holder thereof in cash, subject to any withholding Taxes payable in respect thereof pursuant to applicable Law and Section 1.7. Subject to the Offer immediately Company Shareholder Approval, the Company shall register Parent, or if Shares are held by a nominee, such nominee in the share register of the Company as shareholder with voting rights with respect to any Shares irrevocably accepted for payment effective as soon as reasonably practicable after the expiration Acceptance Time; provided that Parent shall have paid for such Shares concurrently with the transfer of such Shares.
(d) Notwithstanding anything in this Agreement to the contrary, if, at any time occurring on or after the date hereof and prior to the Acceptance Time, any change in the outstanding equity interests of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that Company shall occur as a result of any reorganization, reclassification, recapitalization, stock split (including a reverse stock split), subdivision or combination, exchange or readjustment of shares, or any stock dividend or stock distribution (including any dividend or other distribution of securities convertible into Shares) with a record date during such extension 90% or more of period, the Shares Offer Price will be tendered in equitably adjusted to reflect such change and provide the Offer. If, at any scheduled expiration date holders of each Share the same economic effect as contemplated by this Agreement prior to October 1such event; provided, 1997, there that nothing in this Section 1.1(d) shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up be construed to 20 calendar days) as permit the Company may request. No to take any such request shall be made by action without the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each consent of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent if required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsunder Section 4.2.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.1 and subject to the other provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including five (5) Business Days after the date of the public announcement by Purchaser and the Company of this Agreement, Merger Acquisition Sub shall, and Parent Purchaser shall cause Merger Acquisition Sub to, commence the Offer. The obligation of Merger Acquisition Sub to, and of Parent Purchaser to cause Merger Acquisition Sub to, commence the Offer and accept for payment, and pay for, any shares Shares of Company Common Stock properly tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex ----- A attached hereto (the "Offer Conditions"), any of which may be waived waived, in whole - or in part, by Merger Sub Acquisition Sub, in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Acquisition Sub expressly reserves the right to modify the terms of the OfferOffer in a manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (i) waive or otherwise modify the Minimum Condition so as to reduce the minimum number of shares Shares that Acquisition Sub will accept in the Offer to an amount constituting less than fifty-one percent (51%) of Common Stock subject the aggregate outstanding Shares (assuming the exercise of all options to purchase, and the conversion or exchange of all securities convertible or exchangeable into, Shares outstanding as of the consummation of the Offer), (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Per Share Amount, (iii) modify or add impose any conditions to the conditions set forth Offer in Exhibit Aaddition to the Offer Conditions or modify the Offer Conditions (other than to waive any Offer Conditions to the extent permitted by this Agreement), (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend accept for payment or modify pay for any term of Shares pursuant to the Offer in any manner adverse prior to any of the Company's stockholders. The initial expiration date shall be September 15January 4, 19972000. Notwithstanding the foregoing, Merger Acquisition Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer if, if at the scheduled or extended expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or but, in any event, Acquisition Sub shall not, without the prior written consent of the Company, extend the Offer beyond the Cut-Off Date (as defined in Section 8.1(b) hereof), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or but, in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedevent, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Acquisition Sub shall make further extensions of not, without the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request prior written consent of the Company, extend the Offer beyond the Cut-Off Date, or (iii) extend the Offer for such a period as may be requested by the Company not of up to exceed ten business days from such five (5) Business Days if, on any scheduled expiration date. Subject to the terms and conditions of date on which the Offer and this AgreementConditions shall have been satisfied or waived, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares the number of Common Stock Shares which have been validly tendered and not withdrawn pursuant represent more than 50% of the aggregate outstanding Shares (assuming the exercise of all options to purchase, and the Offer that Merger Sub becomes obligated to purchase pursuant to conversion or exchange of all securities convertible or exchangeable into Shares which are outstanding as of the Offer immediately after the expiration consummation of the Offer; provided), however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer but less than 90% of the then issued and outstanding Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Bolle Inc), Merger Agreement (Shade Acquisition Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable practicable, but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the United States Securities and Exchange Commission (the "SEC"). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and payment or pay for, for any shares of Company Common Stock Shares tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent hereto. The initial expiration date of the CompanyOffer shall be January 3, Merger Sub shall not waive the Minimum Condition 2001 (as defined in Exhibit A)determined using Rules 14d-1(g)(3) and to 14d-2 promulgated under the terms and conditions Securities Exchange Act of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent 1934, as amended (the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder"Exchange Act")). Merger Sub expressly reserves the right to waive any condition to the Offer or to modify the terms of the Offer, except thatin each case in its sole discretion; provided, however, that without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock Shares subject to the Offer, (ii) reduce the price per share of Company Common Stock Share to be paid pursuant to the Offer (except pursuant to Section 3.4)or change the form or time of delivery of consideration, (iii) modify amend or waive the Minimum Tender Condition (as defined in Exhibit A hereto) or add to the conditions set forth in Exhibit AA hereto, (iv) except as provided below in the remainder of this Section 1.11.1(a), extend the Offer, or (v) change otherwise amend the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Shares. Notwithstanding the foregoing, Merger Sub may, at any time and from time to time, and, in each case, subject to Section 8.1 hereof, take one or more of the following actions without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), : (iA) extend the OfferOffer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions to the Offer to be satisfied, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of accept Company Common Stock shall Shares for payment is not be satisfiedsatisfied or waived, until such time as all such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof that is applicable --- to the Offer or in order to obtain any material regulatory approval (C) extend the Offer for an aggregate period of not more than 10 business days beyond the latest applicable to the Offer. Merger Sub agrees that: date that would otherwise be permitted under clause (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure or (B) of one or more this sentence, if, as of such date, all of the conditions set forth in to Merger Sub's obligation to accept Company Common Shares for payment (including the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be are satisfied or waived, it shall give but the number of Company Common Shares validly tendered and not withdrawn pursuant to the Offer equals less than 90% of the outstanding Company Common Shares (determined on a fully diluted basis for all outstanding stock options, convertible securities and any other rights to acquire Company Common Stock on the date of purchase). Without limiting the rights of Merger Sub to extend the Offer pursuant to the immediately preceding sentence, Parent and Merger Sub agree that if (I) (x) all of the conditions to the Offer are not satisfied on any scheduled expiration date of the Offer, (y) such conditions are reasonably capable of being satisfied within 30 days after the initial expiration date of the Offer and (z) the Company notice is in compliance with all of its covenants in this Agreement, or (II) any rule, regulation, interpretation or position of the SEC or the staff thereof andthat is applicable to the Offer requires an extension of the Offer, at then Merger Sub shall extend the request Offer for one or more periods of time that Merger Sub reasonably believes are necessary to cause the conditions of the Offer to be satisfied, until all such conditions are satisfied or waived; provided, however, that Merger Sub shall not be required to extend the Offer pursuant to this sentence beyond the 30th day after the initial expiration date of the Offer, unless otherwise required pursuant to (II) above. Subject to Section 8.1 hereof, Merger Sub may, without the consent of the Company, if such conditions are reasonably likely elect to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the terms Exchange Act, following its acceptance of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely Company Common Shares for payment pursuant to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On As soon as practicable on the date of commencement of the Offer, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (such Tender Offer Statement, together with all amendments and supplements thereto, the "Schedule TO"), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included contained therein pursuant to which the Offer will be made, in each case together with any all supplements or and amendments thereto, the "Offer Documents"). The Parent and Merger Sub (i) agree that, on the date on which the Schedule TO is filed with the SEC and on each date on which any amendment or supplement to any Offer --------------- Document is filed with the SEC, the Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder thereunder, and the Offer Documents (ii) represent and warrant that, on the date first published, sent or given to Shareholders, the Company's stockholders, shall Offer Documents will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to information supplied in writing by or on behalf of the Company in writing or any of its officers or directors specifically for inclusion or incorporation by reference in the any Offer DocumentsDocument. Each of Parent, Parent and Merger Sub and (or the Company, in the case of any information supplied by or on behalf of the Company agrees or any of its officers or directors specifically for inclusion or incorporation by reference in any Offer Document) agree promptly to correct any information provided by it for use contained in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents to reflect such correction and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersShareholders, in each case as and to the extent required by applicable Federal and state securities laws. The Parent and Merger Sub shall provide the Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto (including, without limitation, any amendment or supplement thereto) prior to their filing with the SEC or dissemination to stockholders of the CompanyShareholders. Parent and Merger Sub agree to shall provide the Company and its counsel in writing with any written comments (and orally, with any oral comments) that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Parent and Merger Sub to any such comments.
(c) Parent shall contribute The parties hereto agree to Merger Sub on a timely basis promptly file with the funds necessary to purchase Commonwealth of Massachusetts any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant registration statement relating to the Offer and required to perform any of its other obligations be filed pursuant to this Agreement.Chapter 110C of the Massachusetts
Appears in 2 contracts
Samples: Merger Agreement (Minnesota Mining & Manufacturing Co), Merger Agreement (Minnesota Mining & Manufacturing Co)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth ten business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any the “Offer Conditions”). The initial expiration date of which may the Offer shall be waived by Merger midnight, New York City time, on the 20th business day following the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Sub expressly reserves the right to, in its sole discretion, provided thatwaive, without the consent of the Companyin whole or in part, Merger Sub shall not waive the Minimum any Offer Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) change, modify or waive the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AA or modify any Offer Condition in a manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding anything in this Agreement to the foregoingcontrary, Merger and without limiting Parent’s or Sub’s obligations under the following sentence, Sub (A) may, in its sole discretion, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for any period, if at the on any then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or, in Sub’s sole discretion, waived, until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer; provided, however, that in no event shall Sub be required to extend the Offer beyond the Termination Date. Merger Parent and Sub agrees that: agree that (A) in if, on any then-scheduled expiration date of the event it would otherwise be entitled to terminate Offer, any of the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions Conditions set forth in the first sentence of the introductory paragraph or paragraphs clauses (aii) or through (gvi) of Exhibit A to be is not satisfied or or, in Sub’s sole discretion, waived, it then Sub shall, and Parent shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodcause Sub to, extend the Offer on one or more occasions, in consecutive increments of up to ten business days each, until the earlier of (1) such time as such condition isOffer Conditions are satisfied or, or conditions arein Sub’s sole discretion, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at if, on any then-scheduled expiration date thereof due solely to the failure of the Offer, the Minimum Tender Condition to be satisfiedis not satisfied but all of the other Offer Conditions set forth in Exhibit A are satisfied or, it in Sub’s sole discretion, waived, then Sub shall, at the request of the Companyand Parent shall cause Sub to, extend the Offer for such period as may be requested provided by the Company not terms of Section 8.01(f); provided, however, that in no event shall Sub be required to exceed ten business days from such scheduled expiration dateextend the Offer beyond the Termination Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.01(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.01(a)). Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; providedOffer is referred to in this Agreement as the “Offer Closing”, however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days (up to 20 calendar days) as a “subsequent offering period” in accordance with Rule 14d-11 under the Company may request. No such request shall be made by Exchange Act, and the Company ifOffer Documents may, in its Sub’s sole judgmentdiscretion, it concludes that the Merger could be consummated on or prior to October 6, 1997provide for such a reservation of right. Nothing contained in this Section 1.01(a) shall affect any termination rights in Article VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on to be disseminated to the shareholders of the Company as and to the extent required by Federal securities laws. The Company shall promptly after the date first published, sent or given hereof furnish to Parent and Sub all information concerning the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the shareholders of the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Parent and Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or dissemination thereof to the shareholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Sub shall provide the Company a reasonable opportunity to review the and comment on such Offer Documents or response (including the proposed final version thereof), and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree shall give reasonable consideration to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and shall cause Sub to perform any fulfill all of its other Sub’s obligations pursuant to under this Agreement.
(d) Parent, Sub, the Surviving Corporation or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Sub, the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state, local or foreign tax law. To the extent that amounts are so withheld and paid over by Parent, Sub, the Surviving Corporation or the Paying Agent to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Sub, the Surviving Corporation or the Paying Agent.
(e) Sub shall timely file with the Commissioner of Commerce of the State of Minnesota a registration statement related to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes (the “Minnesota Registration Statement”) and shall disseminate the Minnesota Registration Statement as required by Chapter 80B of the Minnesota Statutes. Sub shall promptly file with the Commissioner of Commerce of the State of Minnesota all materials referred to in Section 80B.04 of the Minnesota Statutes that Parent and Sub file with the SEC or otherwise make available to the shareholders of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Mentor Corp /Mn/), Merger Agreement (Johnson & Johnson)
The Offer. (a) Subject to the provisions of this ---------- Agreement, as promptly as practicable practicable, but in no event later than the fifth five business day from and including the date of days after the public announcement of this Agreementthe Offer, Merger Acquisition Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Acquisition 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 or Preference Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived in whole or in part by Merger Acquisition Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Acquisition Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Acquisition Sub shall not (i) reduce the number of shares of Company Common Stock subject or Preference Stock to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to Offer Price or the Preference Stock Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any other term of the Offer in any a manner adverse in any material respect to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock or Preference Stock. Notwithstanding the foregoing, Merger Acquisition Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer beyond any 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 any scheduled expiration date of the Offer Offer, any of the conditions to Merger Acquisition Sub's obligation to purchase accept for payment, and pay for, shares of Company Common Stock or Preference Stock shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: and (Aiii) in the event it would otherwise be entitled to terminate the Offer at without prejudice to any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived its and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of Parent's rights under this Agreement, and that nothing in this Section 1.1 shall modify Parent's and including to proceed with the Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with with, and subject to the terms of and conditions of, this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateAgreement. Subject to the terms and conditions of the Offer and this Agreement, Merger Acquisition Sub shallshall accept for payment, and Parent shall cause Merger Sub topay for, pay for all shares of Company Common Stock and Preference Stock validly tendered and not withdrawn pursuant to the Offer that Merger Acquisition Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding subject to compliance with Rule 14e-1(c) under the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that Exchange Act (as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997defined below).
(b) On the date of commencement of the Offer, Parent and Merger Acquisition Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Acquisition Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "Exchange Act")) and, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Acquisition Sub with respect to information supplied regarding the Company or its subsidiaries or provided by the Company in writing for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Acquisition Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Acquisition Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Acquisition Sub agree to provide the Company and its counsel any comments or requests for additional information Parent, Merger 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 shall provide the Company and its counsel an opportunity to participate, including by way of discussion with the SEC or its staff, in the response of Parent and/or Acquisition Sub to such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Acquisition Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock and Preference Stock that Merger Acquisition Sub accepts for payment, and becomes obligated to purchase pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Bird Corp), Merger Agreement (Bi Expansion Ii Corp)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have been terminated in no event later than the fifth business day from accordance with Section 10.1 and including the date none of the public announcement of this Agreementevents set forth in Exhibit A attached hereto and made a part hereof shall have occurred or be existing (unless such event shall have been waived by Parent), Merger Sub shall, and Parent shall cause Merger Sub toSubsidiary to commence, commence and Subsidiary shall commence, the OfferOffer at the Per Share Amount. The obligation of Merger Sub to, and of Parent Subsidiary to cause Merger Sub to, commence the Offer and accept for payment, payment and pay for, any shares of Common Stock for Shares tendered pursuant to the Offer shall be subject only to (i) the condition (the "Minimum Condition") that at least the number of Shares that, when combined with the Shares already owned by Subsidiary and its direct or indirect subsidiaries, constitute at least sixty-six and 2/3rds percent (66.66%) of the then outstanding Shares on a fully diluted basis, including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (ii) the satisfaction or waiver of the other conditions set forth in Exhibit A hereto. Subsidiary expressly reserves the right to waive any such condition (other than the Minimum Condition), to increase the Per Share Amount payable in the Offer, and to make any other changes in the terms and conditions of which the Offer (notwithstanding Section 10.3); provided, however, that no change may be waived by Merger Sub made which (i) decreases the Per Share Amount payable in the Offer, (ii) reduces the maximum number of Shares to be purchased in the Offer, (iii) imposes conditions to the Offer in addition to those set forth in Exhibit A hereto, (iv) amends or changes the terms and conditions of the Offer in any manner materially adverse to the holders of Shares (other than Parent and its sole discretionsubsidiaries) or (v) changes or waives the Minimum Condition. The Per Share Amount shall, provided thatsubject to applicable withholding of taxes, be net to the seller, without interest thereon, upon the consent terms and subject to the conditions of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and Offer. Subject to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of Offer (including, without limitation, the Shares tendered pursuant to the OfferMinimum Condition), but no such assignment Subsidiary shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms accept for payment and pay, as promptly as practicable after expiration of the Offer, except thatfor all Shares validly tendered and not withdrawn.
(b) Upon the execution and delivery of this Agreement, without the consent of Parent and Subsidiary shall make a public announcement disclosing only the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant information pertaining to the Offer (except pursuant to Section 3.4), (iiipermitted by Rule 135(a)(4) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than promulgated by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase Securities Act of 1933, as amended (the "Securities Act"). Promptly after such public announcement, Parent and Subsidiary shall file a Registration Statement on Form S-4 (the "Registration Statement") with the SEC for purposes of registering the Parent Common Stock pursuant to the Offer immediately after Securities Act. Parent and Subsidiary shall take all reasonable efforts to cause the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not Registration Statement to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made declared effective by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997SEC as soon as possible after filing.
(bc) On As soon as reasonably practicable after the date of commencement of Registration Statement is declared effective by the OfferSEC, Parent and Merger Sub Subsidiary shall file with the SEC and disseminate to holders of Shares to the extent required by law a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall contain or shall incorporate by reference an offer to purchase the Shares, which may be comprised of the prospectus contained in the Registration Statement, (the "Offer to Purchase") and a forms of the related letter of transmittal and any related summary advertisement (such the Schedule 14D-1 and the documents and exhibits included therein pursuant to which 14D-1, the Offer will be madeto Purchase and such other documents, together with any all supplements or and amendments thereto, being referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly agree to correct promptly any information provided by it any of them for use in the Registration Statement or Offer Documents if and to the extent that such information which shall have become false or misleading in any material respectmisleading, and each of Parent and Merger Sub Subsidiary further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Registration Statement and Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Registration Statement and Offer Documents and all any amendments and supplements thereto prior to their the filing thereof with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree to Subsidiary will provide the Company and its counsel with a copy of any written comments Parent, Merger Sub or their counsel telephonic notification of any oral comments Parent or Subsidiary may receive from the SEC or its staff with respect to the Registration Statement or Offer Documents promptly after the receipt thereof and will provide the Company and its counsel with a copy of such comments.
any written responses and telephonic notification of any oral response of Parent, Subsidiary or their counsel. In the event that the Offer is terminated or withdrawn by Subsidiary, Parent and Subsidiary shall cause all tendered Shares to be returned promptly (cand to full extent within their power, within five (5) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant business days) to the registered holders of the Shares represented by the certificate or certificates surrendered to the paying agent designated in the Offer and to perform any of its other obligations pursuant to this AgreementDocuments.
Appears in 2 contracts
Samples: Merger Agreement (Comforce Corp), Merger Agreement (Uniforce Services Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth five (5) business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer to purchase all of the outstanding shares of Company Common Stock; provided, that the Company agrees that no shares of Company Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rule 14d-1(g)(3) under the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (D) add to the Offer (other than by increasing the cash offer price) Conditions, or (viE) otherwise amend or modify any term of the Offer in any manner adverse to the holders of Company Common Stock.
(ii) Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, any of the Company's stockholders. The initial expiration date shall be September 15conditions to the offer (including the Minimum Tender Condition and the other conditions and requirements set forth herein and in Exhibit A) is not satisfied or, 1997. Notwithstanding the foregoingin Merger Sub’s sole discretion, waived, then Merger Sub mayshall, without and Parent shall cause Merger Sub to, extend the consent Offer for successive periods of time to be determined at the sole discretion of the CompanyMerger Sub; provided, but subject however, that in no event shall Merger Sub be required to extend the Company's right Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Section 8.1(b)(ii), ARTICLE VIII.
(iiii) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that as soon as practicable after Merger Sub becomes obligated is legally permitted to purchase do so under applicable Law. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; providedOffer is referred to in this Agreement as the “Offer Closing”, however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (up to 20 calendar daysas defined below) as the Company may request. No such request shall be made by the Company ifmay, in its Merger Sub’s sole judgmentdiscretion, it concludes that the Merger could be consummated on or prior to October 6, 1997provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light stockholders of the circumstances under which they were made, not misleading, except that no representation is made Company as and to the extent required by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsfederal securities laws. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the stockholders of the Company's stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable Federal federal securities laws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given a reasonable opportunity promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to review the filing of the Offer Documents and all amendments and supplements thereto prior to their filing (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company. , or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub agree to shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. In the event that Parent or Merger Sub receives any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after to such comments and (ii) take all other actions necessary to resolve the receipt of such commentsissues raised therein.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds consideration necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and shall cause Merger Sub to perform any fulfill all of its other Merger Sub’s obligations pursuant to under this Agreement.
(d) Parent, Merger Sub or the paying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state or local Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 2 contracts
Samples: Merger Agreement (Teva Pharmaceutical Industries LTD), Merger Agreement (Nupathe Inc.)
The Offer. (a) Subject to the provisions conditions of this --------- Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to, --- and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Company Capital Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub Sub, in its sole discretion, provided that, without the consent of the Company, Merger -------- Sub shall may not waive the Minimum Tender Condition (as defined in Exhibit A)) and to the terms and other conditions of in this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to the OfferOffer shall be January 5, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder2000. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Company Capital Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) reduce the price per share of Company Preferred Stock to be paid pursuant to the Offer, (iv) modify or add to the conditions set forth in Exhibit A, (ivv) except as provided in the remainder of this Section 1.1, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner materially adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Capital Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if if, at the scheduled expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Company Capital Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer and (iii) extend the Offer for any reason for a period (a "Parent Extension Period") of not more than 10 ----------------------- business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence or that results from an extension of the Offer requested by the Company pursuant to the next sentence; provided, however, that if Sub extends the Offer pursuant to clause (iii) of -------- ------- this sentence, it shall waive during any such Parent Extension Period all conditions of the Offer set forth in order Exhibit A other than (x) the Minimum Tender Condition and (y) the condition in paragraph (b) of Exhibit A solely to obtain the extent Parent and Sub would violate any material regulatory approval applicable Applicable Law (as defined in Section 3.05(a)) or Judgment (as defined in Section 3.05(a)) in purchasing shares of Company Common Stock pursuant to the Offer. Merger Sub agrees that: (A) in If any of the event it would otherwise be entitled to terminate conditions of the Offer at set forth in Exhibit A (other than the Minimum Tender Condition) is not satisfied or waived on any scheduled expiration thereof due to the failure of one or more date of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedOffer, it shall give the Company notice thereof and, at the request of the Companythen, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which Sub shall not extend the Offer one or more times (the period of each such extension to be later than (xdetermined by Sub) December 31, 1997 or (y) for up to 30 days in the date on which the Company reasonably believes aggregate for all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementextensions, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- at the time of such extension any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions reasonably capable of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be being satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Company Capital Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub --------------- and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tj International Inc), Agreement and Plan of Merger (Weyerhaeuser Co)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997twenty business days from and including the commencement of the Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) ), (f), or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, Company which shall not be later than (x) December 31September 15, 1997, or October 15, 1997 if the option to extend set forth in Section 8.1(b)(ii)(y) is exercised or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable)satisfied; provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the CompanyCompany (which request may be made by the Company only on one occasion), extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, the Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after upon the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Genesis Eldercare Acquisition Corp), Merger Agreement (Multicare Companies Inc)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article VIII hereof, as promptly as practicable after the date hereof (but in no event later than the fifth business day from and including seventh (7th) Business Day after the date of the public announcement of this Agreementhereof), Merger Sub shallshall commence (within the meaning of Rule 14d-2 under the Exchange Act), and Parent shall cause Merger Sub toto commence, commence the Offer to purchase all of the issued and outstanding Shares at a price per Share in cash equal to $31.00 net to the seller, without interest and less any taxes required to be withheld as described in Section 3.5 (such amount to be paid for each Share, as it may be amended from time to time in accordance with the terms hereof, the “Offer Price”). The Company agrees that no Shares owned by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. .
(b) The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares validly tendered and not validly withdrawn pursuant to the Offer on or prior to the Expiration Date (the “Tendered Shares”) shall be subject only to (i) the satisfaction of the Minimum Condition and (ii) the satisfaction or waiver by Merger Sub of the other conditions set forth in Exhibit A Annex I hereto (any of which may be waived by Merger Sub in its sole discretionsuch conditions, provided that, without the consent of the Company, Merger Sub shall not waive together with the Minimum Condition (as defined in Exhibit A)Condition, the “Offer Conditions”) and to the terms and conditions hereof. The Offer Conditions are for the sole benefit of this AgreementParent and Merger Sub. Parent and Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent expressly reserve the right to purchase all increase the Offer Price or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent waive or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms or conditions of the Offer, except that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) reduce the number of Shares to be purchased by Merger Sub in the Offer, (iv) waive or amend the Minimum Condition, (v) add to the Offer (Conditions or impose any other than by increasing conditions to the cash offer price) or Offer, (vi) amend extend the expiration of the Offer except as required or permitted in Section 1.1 of this Agreement, (vii) otherwise amend, modify or supplement any Offer Condition or any term of the Offer set forth in any this Agreement, in each case in a manner adverse to any the holders of Shares or (viii) abandon or terminate the Company's stockholders. The Offer, except as expressly provided in this Agreement.
(c) Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date for the Offer shall be September 15midnight, 1997New York City time, the twentieth (20th) Business Day from and after the date the Offer is commenced, as determined in accordance with Rule 14d-1(g)(3) of the Exchange Act (such initial expiration date as it may be extended in accordance with the terms of this Agreement, the “Expiration Date”). Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Companyand Parent shall cause it to, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval NASDAQ Stock Market (“NASDAQ”) that is applicable to the Offer. Merger Sub agrees that: may without the consent of the Company (in each case unless this Agreement has been terminated pursuant to Article VIII), (i) extend the Offer for one or more consecutive increments of not more than ten (10) Business Days each, if at the then-scheduled Expiration Date any Offer Condition has not been satisfied or waived (the length of such period to be determined by Parent and Merger Sub) and/or (ii) make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act. If at any then-scheduled Expiration Date any Offer Condition has not been satisfied or waived, Merger Sub shall, and Parent shall cause it to (in each case unless this Agreement has been terminated pursuant to Article VIII), extend the Offer at the request of the Company for one or more consecutive increments of not more than ten (10) Business Days each (the length of such period to be determined by Parent and Merger Sub) until the earlier to occur of (A) the termination of this Agreement pursuant to Article VIII and (B) the Outside Date. In addition, Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act of not less than five (5) Business Days; provided that Merger Sub shall not be required to make available such a “subsequent offering period” in the event it would that, prior to the commencement of such “subsequent offering period,” Parent and Merger Sub, directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable); provided further that if Parent and Merger Sub, do not directly or indirectly own at least ninety percent (90%) of the outstanding Shares (after taking into account the exercise of the Top-Up Option, if applicable) at the end of the initial “subsequent offering period,” Merger Sub shall (and Parent shall cause Merger Sub to), if requested by the Company, extend the “subsequent offering period” for not less than an additional five (5) Business Days. Nothing in this Section 1.1(c) shall (i) impose any obligation on Merger Sub to extend the Offer beyond the Outside Date, or (ii) be deemed to impair, limit or otherwise be entitled restrict in any manner the right of Parent to terminate this Agreement pursuant to Article VIII.
(d) The Offer shall be made by means of an offer to purchase (the “Offer at any scheduled expiration thereof due to Purchase”) containing the failure of one or more of terms set forth in this Agreement and the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateI hereto. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered on the terms set forth in this Agreement and not withdrawn pursuant subject to the Offer that Merger Sub becomes obligated to purchase pursuant to prior satisfaction or waiver of the conditions of the Offer immediately after the expiration of the Offer; (provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend Minimum Condition may not be waived without the expiration date written consent of the Offer Company), accept for payment and pay for all Tendered Shares as soon as practicable after the Expiration Date. If Merger Sub makes available a period not to exceed ten business days and “subsequent offering period” in no event ending after December 31accordance with Section 1.1(c) hereof, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at and Parent shall cause Merger Sub to accept for payment and pay for all Shares that are validly tendered during such “subsequent offering period” promptly (within the request meaning of Rule 14d-11 under the Company, extend the Offer for Exchange Act) after any Shares are validly tendered during such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997“subsequent offering period.”
(be) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer the Offer to purchase Purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto and including the exhibits thereto, the "“Offer Documents"”), and cause the Offer Documents to be disseminated to the Stockholders as and to the extent required by United States federal securities Laws and the rules and regulations of the SEC promulgated thereunder (the “Federal Securities Laws”). The Parent and Merger Sub shall cause the Offer --------------- Documents shall to comply as to form in all material respects with the requirements Federal Securities Laws. Parent and Merger Sub shall deliver copies of the Securities Exchange Act proposed forms of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent (including any amendments or given supplements thereto) to the Company's stockholders, shall not contain any untrue statement of Company within a material fact reasonable time prior to the dissemination or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied filing thereof for review and comment by the Company and its counsel, and shall consider in writing for inclusion in good faith any comments of the Offer DocumentsCompany. Each of Parent, Merger Sub and the Company agrees shall respond promptly to any comments of the SEC or its staff with respect to the Offer or the Offer Documents and promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of respect or as otherwise required by the Federal Securities Laws. Parent and Merger Sub further agrees to take all steps necessary to shall amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable the Federal securities laws. The Company Securities Laws and its counsel shall be given a reasonable opportunity subject to review the Offer Documents terms and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders conditions of the Companythis Agreement. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall give the Company a reasonable opportunity under the circumstances to review and comment on any proposed written or oral responses to such comments. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation as it may be amended or modified, and until but not after it is withdrawn, in each case as permitted by this Agreement.
(cf) Parent shall contribute cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to perform, on a timely basis, all of Merger Sub’s obligations under this Agreement with respect to consummation of the Offer and to perform any the Merger and payment or issuance of its other obligations pursuant to consideration contemplated by this AgreementAgreement in respect thereof.
Appears in 2 contracts
Samples: Merger Agreement (Amylin Pharmaceuticals Inc), Merger Agreement (Bristol Myers Squibb Co)
The Offer. (a) Subject to the provisions of this Agreement, and provided that none of the events set forth in clauses (iii)(A), (iii)(B), (iii)(C) or (iii)(D) of Annex II to this Agreement has occurred and is continuing, as promptly as practicable but and in any event no event later more than the fifth business day from and including ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub Offeror shall, and Parent shall cause Merger Sub Offeror to, commence commence, within the meaning of Rule l4d-2 under the Securities Exchange Act of 1934 (the “Exchange Act”), the Offer. The obligation of Merger Sub Offeror to, and of Parent to cause Merger Sub Offeror to, commence the Offer and accept for payment, payment and pay for, for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit A Annex II (any of which may be waived by Merger Sub in its sole discretion, the “Tender Offer Conditions”); provided thatthat Parent and Offeror may, without the consent of the CompanyCompany (but, Merger Sub shall not for the avoidance of doubt, subject to Sections 1.01(c) and 1.01(d)), increase the Offer Price and waive any of the Tender Offer Conditions (other than the Minimum Condition (as defined in Exhibit A)Tender Condition, which may not be waived without the prior written consent of the Company) and to make changes in the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, Offer except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce neither Offeror nor Parent may change the form of consideration to be paid, decrease the Offer Price or the number of shares of Company Common Stock subject sought to be purchased in the Offer, impose additional conditions to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to time period during which the Offer (except pursuant to Section 3.4)shall remain open, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any of the Tender Offer Conditions or amend any other term of the Offer in any manner adverse to any the holders of the Company's stockholdersshares of Company Common Stock. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied Company agrees that no Cancelled Shares or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Remaining Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On As promptly as practicable and in any event no more than ten (10) Business Days after the date of commencement of the Offerthis Agreement, Parent and Merger Sub Offeror shall file with the SEC U.S. Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule 14D-1 TO (as amended and supplemented from time to time, the “Schedule TO”) with respect to the Offer, which shall comply in all material respects with the provisions of applicable federal securities Laws, and shall contain an or incorporate by reference the offer to purchase relating to the Offer and a forms of the related letter of transmittal and summary advertisement other appropriate documents (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934documents, as amended (or supplemented from time to time, are referred to herein collectively as the "“Offer Documents”). Parent and Offeror further agree to disseminate the Offer Documents to holders of shares of Company Common Stock as and to the extent required by applicable federal securities Laws. The Company shall promptly provide to Parent and Offeror all information concerning the Company and its Subsidiaries and the Company’s stockholders that may be required under the Exchange Act". The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents, and Parent and Offeror shall give reasonable and good faith consideration to any comments made by the Company and its counsel prior to their filing with the SEC (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable). Parent and Offeror agree to provide the Company (in writing, if written), and to consult with the ------------ rules Company and regulations promulgated thereunder and its counsel regarding, any comments that may be received from the SEC or its staff (whether written or oral) with respect to the Offer Documents on the date first published, sent or promptly after receipt thereof and any responses thereto. The Company and its counsel shall be given a reasonable opportunity to the Company's stockholders, shall not contain review any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentssuch written and oral comments and proposed responses. Each of Parent, Merger Sub Offeror and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Offeror further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the Company's stockholdersholders of shares of Company Common Stock, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsLaw.
(c) Unless this Agreement shall have been terminated pursuant to Section 8.01, the “initial scheduled expiration date of the Offer” shall be twenty (20) business days (as defined in Rule 14d-1(g)(3) promulgated under the Exchange Act) after (and including the day of) the date of its commencement (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Offeror shall not, and Parent agrees that it shall cause Offeror not to, terminate or withdraw the Offer other than in accordance with the terms of this Agreement. Offeror and Parent may, without receiving the consent of the Company, extend the Expiration Date for any period required by applicable rules and regulations of the SEC, the NASDAQ Global Market or any other stock exchange or automated quotation system applicable to the Offer. Notwithstanding the foregoing, Parent and Offeror shall, unless this Agreement shall have been terminated pursuant to Section 8.01, extend the Offer from time to time if at any scheduled Expiration Date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived; provided that such extension shall be for a period that is not more than ten (10) Business Days after such previously scheduled Expiration Date (unless otherwise reasonably agreed by the parties). In the event the Acceptance Date occurs but Parent does not acquire a number of shares of Company Common Stock sufficient to enable a Short Form Merger to occur (assuming exercise of the Top-Up Option in full), Offeror may, without the consent of the Company, undertake one or more “subsequent offering periods” for the Offer in accordance with Rule 14d-11 under the Exchange Act for a number of days to be determined by Parent, which shall be not less than three (3) nor more than twenty (20) Business Days in the aggregate (it being understood that any “subsequent offering period” shall not extend the Expiration Date).
(d) Subject to the satisfaction (or, to the extent permitted by this Agreement, waiver by Parent or Offeror) of the Tender Offer Conditions, Offeror shall, and Parent shall contribute cause Offeror to, immediately accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to Merger Sub the Offer (the first date of acceptance for payment and payment, the “Acceptance Date” and the time of acceptance for payment and payment on the Acceptance Date, the “Acceptance Time”) on or after the Expiration Date. If Offeror shall commence a subsequent offering period in connection with the Offer, Offeror shall immediately accept for payment and pay as soon as possible for all additional shares of Company Common Stock tendered during such subsequent offering period, subject to and in compliance with the requirements of Rule 14d-11(e) under the Exchange Act. Parent shall provide or cause to be provided to Offeror on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub Offeror becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Merger Agreement (Greenfield Online Inc), Merger Agreement (Microsoft Corp)
The Offer. (a) Subject to the provisions of this AgreementAgreement and this Agreement not having been terminated in accordance with Article 10 hereof, as promptly as practicable but in no any event later than the fifth within five business day from and including days after the date of the public announcement of this Agreementhereof, Merger Sub shallshall commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and Parent shall cause Merger Sub tothe rules and regulations promulgated thereunder (the "Exchange Act"), commence an offer to purchase all of the outstanding shares of Class A Common Stock, par value $.001 per share ("Class A Common Stock"), and Class B Common Stock, par value $.001 per share ("Class B Common Stock," and, together with the Class A Common Stock, the "Common Stock"), of the Company at a price of $37.00 per share of Common Stock, net to the seller in cash (the "Offer"). The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of 6 Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) hereto and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant Subject to the Offerprovisions of this Agreement, but no such assignment the Offer shall relieve Parent or Merger Sub expire 20 business days after the date of its obligations hereunder. commencement, unless this Agreement is terminated in accordance with Article 10, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination.
(b) Merger Sub expressly reserves the right to modify the terms of the Offer and to waive any condition of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) waive the Minimum Condition (as defined in Exhibit A), (ii) reduce the number of shares of Common Stock subject to the Offer, (iiiii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit AOffer, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, if all of the Offer conditions are satisfied or waived, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend or modify any term or condition of the Offer (including the conditions set forth on Exhibit A) in any manner adverse to any the holders of Common Stock or (vii) impose additional conditions to the Company's stockholders. The initial expiration date shall be September 15, 1997Offer other than such conditions required by applicable Law (as hereinafter defined). Notwithstanding anything herein to the foregoingcontrary, Merger Sub may, in its sole discretion without the consent of the Company, but subject extend the Offer at any time and from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), time (i) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase accept for payment and pay for shares of Common Stock shall not be satisfied, until such time as such conditions are have been satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the its staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (Aiii) in for any period required by applicable Law and (iv) if all Offer conditions are satisfied or waived but the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure number of one or more shares of Common Stock tendered is less than 90% of the conditions set forth in then outstanding number of shares of Common Stock, for an aggregate period of not more than 20 business days (for all such extensions under this clause (iv)) beyond the first sentence of the introductory paragraph or paragraphs latest expiration date that would be permitted under clause (ai), (ii) or (giii) of Exhibit A this sentence. So long as this Agreement is in effect and the conditions to be the Offer have not been satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such an aggregate period as may be requested by the Company of not to exceed ten more than 5 business days from (for all such extensions) beyond the originally scheduled expiration datedate of the Offer. Such period of 5 business days shall include any grace period contemplated by clause (d)(ii) of Exhibit A that extends beyond the otherwise scheduled expiration date of the Offer. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shallshall accept for payment and pay for, and Parent shall cause Merger Sub toin accordance with the terms of the Offer, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Sinter Metals Inc), Merger Agreement (GKN Powder Metallurgy Inc)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but practicable, and in any event no event later more than the fifth business day from and including ten Business Days, after the date of the public announcement of this Agreement, Merger Sub Subsidiary shall, and Parent shall cause Merger Sub Subsidiary to, commence commence, within the meaning of Rule l4d-2 under the Exchange Act, the Offer. The obligation of Merger Sub Subsidiary to, and of Parent to cause Merger Sub Subsidiary to, commence the Offer and accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the satisfaction of the conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. ; provided that Parent and Merger Sub Subsidiary may at waive any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant conditions to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall Minimum Condition, which may not be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, waived without the prior written consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or may make changes in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreementexcept that, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to without the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request written consent of the Company, no change may be made to the form of consideration to be paid, no decrease in the Offer Price or the number of Shares sought in the Offer may be made, no change which imposes additional conditions to the Offer or modifies any of the conditions set forth in Annex A in any manner adverse to the holders of the Shares may be made and neither Parent nor Merger Subsidiary may extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company ifOffer, except in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997accordance with Section 2.01(c).
(b) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect TO (as amended and supplemented from time to time, the Offer"Schedule TO"), which shall comply in all material respects with the provisions of applicable federal securities laws, and shall contain an the offer to purchase relating to the Offer and a forms of the related letter of transmittal and summary advertisement other appropriate documents (such Schedule 14D-1 and the documents and exhibits included therein pursuant which documents, as amended or supplemented from time to which the Offer will be madetime, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Parent and the Merger Subsidiary further agree to disseminate the Offer --------------- Documents to holders of Shares as and to the extent required by applicable federal securities laws. In conducting the Offer, the Parent and the Merger Subsidiary shall comply as to form in all material respects with the requirements provisions of the Securities Exchange Act of 1934, as amended (and any other applicable laws necessary to be complied with in connection with the "Exchange Act"), Offer. The Company shall promptly furnish to Parent and Merger Subsidiary all information concerning the Company and its Subsidiaries and the ------------ rules Company's stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 2.01. The Company and regulations promulgated thereunder its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents on prior to their filing with the date first published, sent or given SEC. Parent and Merger Subsidiary agree to provide the Company's stockholders, shall not contain and to consult with the Company and its counsel regarding, any untrue statement of a material fact comments that may be received from the SEC or omit to state any material fact required to be stated therein its staff (whether written or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub oral) with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsDocuments promptly after receipt thereof and any responses thereto. Each of Parent, Merger Sub Subsidiary and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub Subsidiary further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented corrected to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Shares, in each case case, as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentslaw.
(c) The initial scheduled expiration date of the Offer shall be 20 Business Days after the date of its commencement. Notwithstanding the foregoing, Parent and Merger Subsidiary shall have the right to extend the Offer (i) from time to time if, at any scheduled expiration date of the Offer, any of the conditions to the Offer set forth in Annex A shall not have been satisfied or waived, until such conditions are satisfied or waived; provided that if any of the conditions to the Offer are not satisfied or waived on any scheduled or extended expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer, if such condition or conditions could reasonably be expected to be satisfied prior to ten Business Days following the initial scheduled expiration date of the Offer; provided further that if the conditions set forth in clauses (x) or (y) of the first sentence of Annex A hereto are not satisfied or waived or the condition set forth in clause (z) of Annex A is not satisfied or waived as a result of the occurrence of any of the events described in subparagraphs (b) or (g) thereon on any scheduled expiration date of the Offer, Parent and Merger Subsidiary shall extend the Offer at the request of the Company (but in no event shall Parent and Merger Subsidiary be obligated to extend expiration of the Offer pursuant to this clause (i) beyond August 15, 2004), (ii) for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Offer or any period required by applicable law, (iii) on one or more occasions (all such occasions aggregating not more than ten Business Days) beyond the latest expiration that would otherwise be permitted under clause (i) or (ii) of this sentence, if, on such expiration date, all of the conditions to Merger Subsidiary's obligations to accept for payment Shares are satisfied or waived, but the number of Shares tendered (and not withdrawn) pursuant to the Offer, together with Shares then owned by Parent, represents less than 90% of the outstanding Shares on a fully diluted basis; provided, however, that Parent's decision to extend the Offer in the case of this clause (iii) shall constitute a waiver of the conditions set forth in clauses (d) and (f) on Annex A and of its right to terminate the Agreement under Sections 8.01(b), (d), (j) or (k), (iv) on up to two occasions (for a period not to exceed ten Business Days on each occasion) if an Adverse Market Change shall have occurred and be continuing on the initial or any extended expiration date of the Offer, and (v) for one or more subsequent offering periods of up to an additional 20 Business Days in the aggregate (collectively, the "Subsequent Period") pursuant to Rule 14d-11 of the Exchange Act. Notwithstanding the foregoing, Parent and Merger Subsidiary shall also have the right to extend the Offer in accordance with Section 8.01(f).
(d) Subject to the terms and conditions of the Offer and this Agreement, Merger Subsidiary shall, and Parent shall contribute cause Merger Subsidiary to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer as soon as possible after the expiration thereof; provided that Merger Subsidiary shall immediately accept and promptly pay for all Shares as they are tendered during any Subsequent Period. Parent shall provide or cause to be provided to Merger Sub Subsidiary on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub Subsidiary becomes obligated to purchase pursuant to the Offer.
(e) The Offer and to perform any Price may be increased by the Parent without the consent of its other obligations pursuant to this Agreementthe Company, in which case the Offer shall be extended, without the consent of the Company, as required by applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Encana Corp), Merger Agreement (Brown Tom Inc /De)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated pursuant to Article VIII, subject to the provisions of this Agreementfollowing sentence, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Acquisition Sub shall, and Parent shall cause Merger Acquisition Sub to, as promptly as practicable and in no event later than 30 days after the date FINRA declares the Rule 1017 Application(s) “substantially complete,” with prior notice to the Company, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer. The obligation ; provided, however, if as of Merger such date, FINRA has indicated that it is considering imposing material restrictions or limitations on the Company Broker-Dealers pursuant to NASD Rule 1017 as a result of the transactions contemplated by this Agreement, then Acquisition Sub toshall, and of Parent to shall cause Merger Acquisition Sub to, commence the Offer and accept for payment, and pay for, within five days after the parties have resolved any shares of Common Stock tendered pursuant potential material restrictions or limitations to the reasonable satisfaction of Parent. Each of Parent and Acquisition Sub shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. The Offer shall be subject only to the satisfaction or waiver (to the extent permitted by this Agreement and under applicable Laws) of the conditions set forth in Exhibit A Annex B (any of which may be waived by Merger Sub in its sole discretionthe “Tender Offer Conditions”), provided that, without the consent and no other conditions. The initial expiration date of the Company, Merger Sub Offer shall not waive be 12:00 midnight (Eastern Time) at the Minimum Condition end of the day on the date that is 20 business days after the date on which the Offer was commenced (determined as defined provided in Exhibit A)Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Time” and any expiration time and date established pursuant to an extension of the terms and conditions of Offer in accordance with this Agreement, also an Expiration Time). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Acquisition Sub expressly reserves the right (i) to increase the Offer Price and (ii) to waive any condition to the Offer (to the extent permitted by this Agreement and under applicable Laws) or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Acquisition Sub shall not (iA) reduce the number of shares of Common Stock Shares subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iiiC) modify or add to the conditions set forth Tender Offer Conditions or amend or modify any Tender Offer Condition in Exhibit Aany manner adverse to the holders of Shares, (ivD) except as otherwise provided in the remainder of this Section 1.1, extend the OfferExpiration Time, or (vE) change the form of consideration payable in the Offer Offer, provided, that nothing in this clause (other than by increasing the E) shall limit Acquisition Sub’s ability to provide additional cash offer price) or (vi) amend or modify any term of consideration in addition to the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Price. Notwithstanding the foregoing, Merger (x) Acquisition Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferExpiration Time for one or more consecutive increments of not more than 20 business days each (the length of such period to be determined by Parent or Acquisition Sub), if at the any otherwise scheduled expiration date of the Expiration Time any Tender Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Condition has not be satisfied, until such time as such conditions are been satisfied or waived or (to the extent permitted by this Agreement and under applicable Laws), (ii) extend the Offer Expiration Time for any the minimum period required by any Law or Order, or any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the its staff thereof applicable --- to the Offer or The NASDAQ Stock Market LLC (“NASDAQ”), in order to obtain any material regulatory approval such case which is applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) , or (giii) of Exhibit A to be satisfied or waived, it make available a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act and (y) Acquisition Sub shall give (and Parent shall cause Acquisition Sub to) extend the Company notice thereof and, Expiration Time at the request of the Company, if Company for one or more consecutive increments of not more than 20 business days (the length of such conditions are reasonably likely periods to be determined by Parent giving reasonable consideration to the Company’s request) if at any otherwise scheduled Expiration Time any Tender Offer Condition has not been satisfied during or waived (to the requested extent permitted by this Agreement and under applicable Laws); provided that in the case of any extension periodof the Expiration Time pursuant to either (x) or (y) above, such extension shall in no event extend the Offer until Expiration Time to a time later than, the earlier of (1) such time as such condition is, the termination of this Agreement in accordance with its terms or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than Termination Date.
(xb) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Acquisition Sub shall, shall (and Parent shall cause Merger Acquisition Sub to) accept for payment, and pay for for, all shares of Common Stock Shares that are validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of Expiration Time (the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration time and date of the Offer on which Acquisition Sub irrevocably accepts such Shares for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments theretopayment, the "Offer Documents"“Acceptance Time”). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide (or cause Acquisition Sub to Merger Sub provide) on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Acquisition Sub becomes obligated to purchase pursuant to the Offer and to perform any Offer. For purposes of its other obligations pursuant to this Agreement, the term “business day” has the meaning provided in Rule 14d-1(g)(3) under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (National Holdings Corp), Merger Agreement (Fortress Biotech, Inc.)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have been terminated in no event later than the fifth business day from and including the date of the public announcement of this Agreementaccordance with Section 7.1, Merger Sub shall, and Parent shall cause Merger Sub toto (i) as promptly as practicable following the execution of this Agreement, and in any event within three Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing) commence (within the Offermeaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) the Offer to purchase all outstanding Shares at the Per Share Amount. The obligation Per Share Amount shall be net to the seller in cash, subject to reduction only for any applicable federal backup withholding or stock transfer taxes payable by the seller. The obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject to only to the those conditions set forth in Exhibit A Annex III (the “Tender Offer Conditions”). The Company agrees that no Shares held by the Company or any of which its Subsidiaries (other than any Shares held on behalf of third parties) will be tendered pursuant to the Offer. For the avoidance of doubt, the parties hereto agree that Restricted Shares may be waived tendered in the Offer and be acquired by Parent or Merger Sub in its sole discretionpursuant to the Offer.
(b) Parent on behalf of Merger Sub expressly reserves the right from time to time, subject to Sections 1A.1(c) and (d), to waive any Tender Offer Condition or increase the Per Share Amount, provided that, that without the prior written consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) not, and to the terms and conditions of this Agreement. Parent shall cause Merger Sub may at any time transfer or assign not to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce decrease the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Per Share Amount or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer Offer, (other than by increasing ii) decrease the cash offer price) or number of Shares sought to be purchased in the Offer, (viiii) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure waive satisfaction of the Minimum Condition to be satisfied(as defined in Annex III), it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject (iv) impose additional conditions to the terms and conditions of the Offer and this AgreementOffer, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to (v) make any change in the Offer that Merger Sub becomes obligated would require an extension or delay of the then-current Expiration Date (other than an increase in the Per Share Amount), (vi) modify or amend the Tender Offer Conditions (other than to purchase pursuant to waive such Tender Offer Conditions, other than the Offer immediately after the expiration Minimum Condition) or (vii) modify or amend any other term of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretionthe case of this clause (vii), extend in any manner (A) adverse to the expiration date holders of the Offer for a period not Shares or (B) which would reasonably be expected to exceed ten business days and in no event ending after December 31result in, 1997, if Parent reasonably believes that as a result of such extension 90% individually or more of the Shares will be tendered in the Offer. Ifaggregate, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997a Parent Material Adverse Effect.
(bc) On the date of commencement of the Offer, Parent and Merger Sub shall file or cause to be filed with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, Offer which shall contain an the offer to purchase (the “Offer to Purchase”) and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents and exhibits included therein instruments pursuant to which the Offer will be made, together made (collectively with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent respect and Merger Sub shall, and Parent further agrees to cause Merger Sub to, take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended corrected or supplemented supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the and comment on any Offer Documents and all amendments and supplements thereto prior to their filing (including each amendment or supplement thereto) before they are filed with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree shall, and Parent agrees to cause Merger Sub to, provide the Company with (in writing, if written), and its counsel to consult with the Company regarding, any comments (written or oral) that may be received by Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents as promptly as practicable after the receipt of thereof. The Company and its counsel shall be given a reasonable opportunity to review any such commentswritten and oral comments and proposed responses.
(cd) The Offer to Purchase shall provide for an expiration date of the 20th Business Day (as defined in Rule 14d-1 under the Exchange Act, “Business Day”) following (and including the day of) the commencement of the Offer (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this agreement, the “Expiration Date”). Merger Sub shall not and Parent agrees that it shall cause Merger Sub to not terminate or withdraw the Offer other than in connection with the effective termination of this Agreement in accordance with Section 7.1 hereof. Notwithstanding the foregoing, Merger Sub may, without Parent receiving the consent of the Company, (A) extend the Expiration Date for any period required by applicable rules and regulations of the SEC or the New York Stock Exchange applicable to the Offer or (B) elect to provide a subsequent offering period for the Offer in accordance with Rule 14d-11 under the Exchange Act. So long as the Offer and this Agreement have not been terminated pursuant to Section 7.1, if at any scheduled Expiration Date, the Tender Offer Conditions shall not have been satisfied or earlier waived, Merger Sub shall, and Parent shall contribute cause Merger Sub to extend the Offer and the Expiration Date to a date that is not more than five Business Days after such previously scheduled Expiration Date; provided that Merger Sub shall not and Parent shall not be required to cause Merger Sub to extend the Offer beyond the End Date. In the event the Acceptance Date occurs but Parent does not acquire a sufficient number of Shares to enable a Short Form Merger to occur, Merger Sub shall, and Parent shall cause Merger Sub to provide a “subsequent offering period” for a number of days to be determined by Parent but not less than three nor more than 15 Business Days, in accordance with Rule 14d-11 under the Exchange Act; provided that Merger Sub shall, and Parent shall cause Merger Sub to immediately accept and promptly pay for all Shares tendered during the initial offering period and immediately accept and promptly pay for all Shares tendered during such subsequent offering period, in each case in accordance with Rule 14d-11 under the Exchange Act.
(e) Subject solely to the satisfaction or waiver by Merger Sub in accordance with Section 1A.1(b) of the Tender Offer Conditions, Merger Sub shall, and Parent shall cause Merger Sub, as soon as possible after the expiration of the Offer, to accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the Offer (the date of acceptance for payment, the “Acceptance Date”). Parent shall provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Elkcorp), Agreement and Plan of Merger (CGEA Investor, Inc.)
The Offer. (a) Subject Upon the terms and subject to the provisions conditions of this AgreementAgreement and provided that this Agreement shall not have been terminated pursuant to Article VII, as promptly as practicable following the Execution Date, but in any event no event later than the fifth business day from and including tenth Business Day after the date of the public announcement of this AgreementExecution Date, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of Rule 14d-2 under the Exchange Act) the Offer to purchase all shares of Company Common Stock for a price per share equal to the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and irrevocably accept for payment, and pay for, any shares of Company Common Stock validly tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A Annex I (any of which as they may be waived amended in accordance with this Agreement, the “Offer Conditions”).
(b) To the extent permitted by Law, Parent and Merger Sub reserve the right, at any time, to waive, in its sole discretionwhole or in part, provided that, without the consent of the Company, Merger Sub shall not waive any Offer Condition (other than the Minimum Condition (as defined in Exhibit Aor the Termination Condition)) and , to increase the terms and conditions of this Agreement. Merger Sub may at any time transfer Offer Price or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except thatin each case only in a manner not inconsistent with the terms of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (i) reduce the maximum number of shares of Company Common Stock subject sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer Price (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided other than in the remainder of this manner required by Section 1.1, extend the Offer, (v2.1(h) and Section 2.8(d)) or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition or the Termination Condition, (iv) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (other than by increasing the cash offer pricev) or (vi) modify, amend or modify supplement any existing Offer Condition or any other term of the Offer in any manner that is adverse to any the holders of Company Common Stock or that would, individually or in the aggregate, reasonably be expected to prevent the consummation of the Company's stockholdersOffer or the Merger or prevent or impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated by this Agreement, (vi) except as otherwise required or expressly permitted by Section 2.1(d), extend or otherwise change the Expiration Time, (vii) provide for any “subsequent offering period” (or any extension thereof) within the meaning of Rule 14d-11 under the Exchange Act or (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of Company Common Stock or in any manner that unreasonably interferes with, hinders or impairs the consummation of the Offer. Subject to Section 2.1(g), the Offer may not be terminated prior to its scheduled Expiration Time, unless this Agreement is terminated in accordance with Article VII.
(c) The Offer shall initially expire at 5:00 p.m., New York City time, on the date that is twenty-one Business Days (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement of the Offer (such initial expiration date shall be September 15and time of the Offer, 1997. Notwithstanding the foregoing“Initial Offer Expiration Time”) or, if the Offer has been extended pursuant to and in accordance with Section 2.1(d), the date and time to which the Offer has been so extended (the Initial Offer Expiration Time, or such later expiration date and time to which the Offer has been so extended, the “Offer Expiration Time”).
(d) Subject to Article VII, Merger Sub maymay or shall, without as applicable, extend the consent of the Company, but subject Offer from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), time as follows:
(i) extend the OfferMerger Sub shall, if at the scheduled expiration date of the Offer any of the conditions to and Parent shall cause Merger Sub's obligation to purchase shares of Common Stock shall not be satisfiedSub to, until such time as such conditions are satisfied or waived or (ii) extend the Offer from time to time for any period required by any applicable Law, including any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval NYSE applicable to the Offer. ;
(ii) if, at the then-scheduled Offer Expiration Time, the Company brings or shall have brought any Action in accordance with Section 8.12 to enforce specifically the performance of the terms and provisions of this Agreement by Parent or Merger Sub agrees that: Sub, the Offer 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 Governmental Authority presiding over such action, as the case may be, but, in each case of clauses (A) and (B), not past the event it would otherwise be entitled to terminate Outside Date;
(iii) if, at the then-scheduled Offer Expiration Time, any of the Offer at Conditions (other than the Minimum Condition and other than any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A that by their nature are to be satisfied or waived, it shall give the Company notice thereof and, waived at the request Offer Acceptance Time (provided such conditions would be capable of being satisfied or validly waived were the Offer Acceptance Time to occur at such time)) has not either been (A) satisfied or (B) 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 periods of five Business Days each (with each such period to end at 5:00 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of such Offer Conditions; provided, however, that Merger Sub shall not be required to extend the Offer to a date later than the Outside Date; provided, further, that if the day immediately following the last Business Day of any such conditions are reasonably likely five Business Day period would not be a Business Day, Merger Sub may elect in its sole discretion to be satisfied during the requested extension period, extend the Offer until the earlier next Business Day following the last Business Day of such five Business Day period; or
(iv) if, at the then-scheduled Offer Expiration Time, each of the Offer Conditions (other than the Minimum Condition and other than any conditions that by their nature are to be satisfied or waived at the Offer Acceptance Time (provided such conditions would be capable of being satisfied or validly waived were the Offer Acceptance Time to occur at such time)) has either been (A) satisfied or (B) waived by Parent and Merger Sub (to the extent such waiver is permitted under this Agreement and applicable Law) and the Minimum Condition has not been satisfied, then (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this AgreementMerger Sub shall, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyto, extend the Offer for consecutive periods of five Business Days each (with each such period to end at 5:00 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be requested agreed to by Parent and the Company Company), provided that, solely for the purposes of this Section 2.1(d)(iv), Merger Sub shall not be required to exceed ten business extend the Offer to a date later than the date that is 45 calendar days from following the Initial Offer Expiration Time and (2) if clause (1) does not apply, Merger Sub may, and Parent may cause Merger Sub to, extend the Offer on one or more occasions in consecutive periods of five Business Days each (with each such scheduled expiration dateperiod to end at 5:00 p.m., New York City time, on the last Business Day of such period) (or such other duration as may be agreed to by Parent and the Company) in order to permit the satisfaction of the Minimum Condition; provided, however, that if the day immediately following the last Business Day of any such five Business Day period would not be a Business Day, Merger Sub may elect in its sole discretion to extend the Offer until the next Business Day following the last Business Day of such five Business Day period. Subject Merger Sub shall not, and Parent shall not permit Merger Sub to, extend the Offer in any manner except as required or permitted pursuant to this Section 2.1(d).
(e) On the terms and subject to the conditions of this Agreement, including the satisfaction or waiver of each of the Offer Conditions, (i) promptly, and this Agreementin any event no later than 9:00 a.m. Eastern Time on the Business Day (determined using Rule 14d-1(g)(3) under the Exchange Act) immediately following the Offer Expiration Time, Merger Sub shall, and Parent shall cause Merger Sub to irrevocably accept for payment (the time of such acceptance for payment, the “Offer Acceptance Time”) all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer and (ii) at or as promptly as practicable following the Offer Acceptance Time (but in any event not later than the second Business Day (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) thereafter) Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer; provided that with respect to shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee, Merger Sub shall be under no obligation to make any payment for such shares unless and until such shares are delivered in settlement or satisfaction of such guarantee. Parent shall provide or cause to be provided to Merger Sub, at the Offer Acceptance Time, the funds that, when taken together with available cash of the Company and its Subsidiaries, are necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer, and shall cause Merger Sub to fulfill all of Merger Sub’s obligations under this Agreement.
(f) The Offer immediately after Price payable in respect of each share of Company Common Stock shall be paid on the expiration terms and subject to the conditions of this Agreement. 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.
(g) Unless this Agreement is terminated in accordance with Article VII, neither Parent nor Merger Sub shall terminate or withdraw the Offer prior to any scheduled Offer Expiration Time without the prior written consent of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, Company in its sole and absolute discretion. In the event this Agreement is terminated in accordance with Article VII, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Companyand Parent shall cause Merger Sub to, extend promptly (and in any event within one Business Day) following such termination irrevocably and unconditionally terminate the Offer for such number and shall not acquire any shares of days (up Company Common Stock pursuant thereto. If the Offer or this Agreement is terminated in accordance with this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, or cause any depositary acting on behalf of Merger Sub to 20 calendar days) as promptly return, all tendered shares to the Company may request. No such request shall be made by the Company if, tendering stockholders in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997accordance with applicable Law.
(bh) Subject to the obligations of the Company and its Subsidiaries pursuant to Section 5.1, if at any time during the period between the date of this Agreement and the Offer Acceptance Time, any change in the outstanding Company Common Stock shall occur by reason of any reclassification, recapitalization, stock split or combination, split-up, exchange or readjustment of shares or any stock dividend thereon with a record date during such period, or any similar transaction or event, the Offer Price shall be appropriately adjusted to provide the holders of shares of Company Common Stock the same economic effect as contemplated by this Agreement prior to such event.
(i) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) which shall contain or incorporate by reference an offer to purchase and a form of related letter of transmittal in customary form and summary advertisement other appropriate ancillary offer documents and instruments pursuant to which the Offer will be made (such Schedule 14D-1 TO and the documents and exhibits included therein or incorporated by reference pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light holders of the circumstances under which they were made, not misleading, except Company Common Stock as and to the extent required by United States federal securities laws. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel upon request all information concerning the Company and its Subsidiaries that no representation is made may be reasonably requested by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary and use all reasonable efforts to promptly amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersholders of the Company Common Stock, in each case as and to the extent required by applicable Federal securities lawsLaw. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Schedule TO and the other Offer Documents and all any amendments and supplements thereto prior to their filing each time before any such document is filed with the SEC or dissemination SEC, and Parent and Merger Sub shall include in such document (and any amendments thereto) all comments proposed by the Company and its counsel and acceptable to stockholders of the CompanyParent and Merger Sub and their counsel, in each case acting reasonably. Parent and Merger Sub agree to shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent or Merger Sub or their counsel may receive from time to time from the SEC or its staff or other Governmental Authorities with respect to the Offer, the Schedule TO or the other Offer Documents promptly after receipt of those comments or other communications and (B) a reasonable opportunity to participate in the response of Parent and Merger Sub to those comments and to provide comments on that response (which response shall include all comments proposed by the Company and its counsel and acceptable to Parent and Merger Sub and their counsel, in each case acting reasonably), including by offering the Company an opportunity to participate with Parent, Merger Sub or their counsel may receive in any material discussions or meetings with the SEC or other Governmental Authorities to the extent such participation is not prohibited by the SEC or other Governmental Authorities, 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 Parent or Merger Sub or their counsel that the Company does not participate in. In the event that Parent or Merger Sub receives any comments from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to respond as promptly after the receipt of as practicable to such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.01, subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth ten business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the CompanyOffer shall be at the time that is one minute following 11:59 p.m., Merger Sub shall not waive New York City time, on the Minimum Condition date that is 20 business days (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as defined in Exhibit Aamended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) and to after the terms and conditions date the Offer is first commenced (within the meaning of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent Rule 14d-2 promulgated under the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to waive, in its sole discretion, in whole or in part, any Offer Condition or modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) waive, amend or modify the Minimum Tender Condition or add to the conditions set forth in Exhibit ATermination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in the remainder of this Section 1.11.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vvi) change the form or terms of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed to by Parent and the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or (iiirrespective of whether the Minimum Tender Condition has been satisfied) and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval The Nasdaq Global Market (“Nasdaq”) applicable to the Offer. ; provided that Merger Sub agrees that: (A) in the event it would otherwise shall not be entitled required to terminate extend the Offer beyond the Outside Date. In addition, if at any the otherwise scheduled expiration thereof due to the failure of one or more date of the conditions set forth in Offer each Offer Condition (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be shall have been satisfied or waivedwaived and the Minimum Tender Condition shall not have been satisfied, it shall give the Company notice thereof and, at the request of Merger Sub may elect to (and if so requested by the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to), extend the Offer until the earlier for one or more consecutive increments of not more than ten business days each (1) or for such time longer period as such condition is, or conditions are, satisfied or waived may be agreed to by Parent and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood ); provided that the Company shall not be entitled to make such request if it is then in breach of this AgreementMerger Sub to, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right not be required to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyto, extend the Offer for such period as may pursuant to this sentence on more than three (3) occasions; provided, further that Merger Sub shall not, and shall not be requested by required to extend the Company not to exceed ten business days from such scheduled expiration dateOffer beyond the Outside Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer (which shall be the next business day after the expiration of the Offer absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer; provided, however, that notwithstanding . The date on which Merger Sub first irrevocably accepts for purchase the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date shares of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be Company Common Stock tendered in the OfferOffer is referred to as the “Offer Closing Date”. If, at any scheduled The Offer may not be terminated or withdrawn prior to its expiration date prior to October 1(as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), 1997unless this Agreement is validly terminated in accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, there Merger Sub shall have been tenderedpromptly terminate the Offer and return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar daysregistered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain include an offer to purchase and a related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Company Common Stock as and to the extent required by applicable U.S. federal securities Law. The Company shall not contain any untrue statement of a material fact or omit furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (cincluding any amendment or supplement thereto) Parent shall contribute with the SEC or the dissemination thereof to Merger Sub on a timely basis the funds necessary holders of Company Common Stock, or responding to purchase any shares comments of Common Stock that Merger Sub becomes obligated to purchase pursuant the SEC or its staff with respect to the Offer Documents, Parent and to perform any of its other obligations pursuant to this Agreement.Merger Sub shall
Appears in 1 contract
The Offer. (a) Subject Upon the terms and subject to the provisions conditions of this AgreementAgreement (including ARTICLE VIII), as promptly as practicable (but in no event later than the fifth business day from and including the date of the public announcement of this AgreementAugust 20, 2010), Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), the Offer; provided, that the Company agrees that no shares of Company Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition "Offer Conditions").
(as i) The initial Expiration Date (defined in Exhibit A)) shall be 12:00 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rules 14d-1(g)(3) and to 14d-2 under the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (D) impose conditions to the Offer that are different than or in addition to the Offer Conditions, (other than by increasing E) extend the cash offer priceOffer except as provided in this Section 1.1 for a period of five (5) Business Days on each such occasion or (viF) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of Company Common Stock or that would reasonably be expected to prevent, materially delay or impair the Company's stockholders. The initial expiration date shall be September 15ability of Parent or Merger Sub to consummate the Offer, 1997. the Merger or the other Transactions.
(ii) Notwithstanding anything in this Agreement to the foregoingcontrary, Merger Sub (A) may, in its sole discretion (subject to the obligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), without the consent of the Company, but subject to extend the Company's right to terminate this Agreement pursuant to Section 8.1(b)(iiOffer on one or more occasions for a period of five (5) Business Days on each such occasion if, on any then-scheduled Expiration Date (defined in Exhibit A), (i) extend the Offer, if at the scheduled expiration date any of the Offer any of the conditions to Conditions shall not be satisfied or, in Merger Sub's obligation to purchase shares of Common Stock shall not be satisfiedsole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC") or ), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the "Nasdaq") applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: (A) in the event it would otherwise be entitled required to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, beyond the Outside Date or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 at any time that Parent or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it Merger Sub is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right permitted to terminate this Agreement pursuant to ARTICLE VIII.
(iii) In addition to the extension obligation set forth in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicableSection 1.1(a)(ii)(B); provided , Parent and Merger Sub agree that if -------- on any such condition scheduled Expiration Date of the Offer, the Minimum Tender Condition is not satisfied by but all of the date so chosen by the Companyother Offer Conditions set forth in Exhibit A are satisfied or, the Company may request and in Merger Sub's sole discretion, waived, then Merger Sub shall, and Parent shall make further extensions cause Merger Sub to, on each of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any first two such scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companydates, extend the Offer for periods of five (5) Business Days on each such period as may occasion; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times, for five (5) Business Days on each such occasion, and in no event shall Merger Sub be requested by required to extend the Company not Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to exceed ten business days from such scheduled expiration date. Subject terminate this Agreement pursuant to ARTICLE VIII.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the Expiration Date (defined in Exhibit A) (as it may be extended and re-extended in accordance with this Section 1.1(a)). The Offer Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; provided, however, that notwithstanding Offer is referred to in this Agreement as the -------- ------- foregoing Parent may"Offer Closing," and the date on which the Offer Closing occurs is referred to in this Agreement as the "Offer Closing Date." Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days (up to 20 calendar days) as a "subsequent offering period" in accordance with Rule 14d-11 under the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first publishedhowever, sent or given to the Company's stockholders, such period (including any extensions thereof) shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
exceed twenty (c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.20)
Appears in 1 contract
The Offer. (a) Subject to the provisions terms and conditions of this AgreementAgreement and provided that this Agreement has not been terminated in accordance with Article VIII and that the Company shall have complied with its obligations under Section 1.01(b) and 1.02(c), as promptly as practicable (but in no event later than the fifth ten business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer shall be are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the CompanyOffer shall be 12:00 midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-1(g)(3) of the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) waive, amend or modify the Minimum Tender Condition or add to the conditions set forth in Exhibit ATermination Condition, (iv) add to the Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as provided in the remainder of otherwise permitted under this Section 1.1Agreement, terminate or extend the Offer, (vvi) change the form of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to the holders of Company Common Stock in any material respect or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right parties’ respective rights to terminate this Agreement pursuant under Article VIII and provided that in no event shall Merger Sub be required to Section 8.1(b)(ii)extend the expiration date of the Offer to any date later than the Outside Date, Merger Sub shall, and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed by the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or waived, and (iiB) extend the Offer for any the minimum period required by any Law, any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to or any rules and regulations of the Offer or in order to obtain any material regulatory approval NASDAQ Global Market (“Nasdaq”) applicable to the Offer. In addition, subject to the parties’ respective rights to terminate this Agreement under Article VIII, if at the otherwise scheduled expiration date of the Offer each Offer Condition (other than the Minimum Tender Condition) shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedmay, it shall give the Company notice thereof and, and at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer Company for one or more consecutive increments of not more than ten business days each (or for such longer period as may be requested agreed by the Company not Company); provided, that in no event shall Merger Sub (1) be required or permitted to exceed ten business days from such scheduled extend the expiration datedate of the Offer to any date later than the Outside Date or (2) be required or permitted to extend the expiration date of the Offer more than two times pursuant to this sentence. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent mayOffer and, in its sole discretionany event, extend the expiration date of the Offer for a period not to exceed ten no more than three business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result the Acceptance Time. The time at which Merger Sub first accepts for payment the shares of such extension 90% or more of the Shares will be Company Common Stock tendered in the OfferOffer is referred to as the “Acceptance Time”. If, at any scheduled The Offer may not be terminated prior to its expiration date prior to October 1(as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), 1997unless this Agreement is validly terminated in accordance with Section 8.01. If the Offer is terminated or withdrawn by Merger Sub, there or this Agreement is terminated in accordance with Section 8.01, Merger Sub shall have been tenderedpromptly return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar daysregistered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Parent and Merger Sub shall file with the SEC Securities and Exchange Commission (the “SEC”) a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents ”) and shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Company Common Stock as and to the extent required by applicable Law. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact Parent and Merger Sub all information concerning the Company required by applicable Law to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer DocumentsDocuments or as reasonably requested by Parent, so as to enable Parent and Merger Sub to comply with their respective obligations under this Section 1.01(b). Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give good faith consideration to any comments reasonably made by the Company or its counsel.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer Offer.
(d) Notwithstanding anything to the contrary herein, Parent and Merger Sub shall be entitled to perform any of its other obligations deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as Parent or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall be treated for all purposes of this AgreementAgreement as having been paid to the Person in respect of which such deduction or withholding was made.
(e) The Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Company Common Stock occurring or having a record date on or after the date hereof and prior to the Acceptance Time, in each case, effected in compliance with Section 5.01, and the Offer Price as so adjusted shall provide to the holders of Company Common Stock the same economic effect as contemplated by this Agreement prior to such action.
Appears in 1 contract
Samples: Merger Agreement (Sapient Corp)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and provided further that the Company is prepared (in accordance with Section 1.02(a)), to file with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 on the same date as Merger Sub commences the Offer, subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth 11 business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A hereto (any the “Offer Conditions”). The initial expiration date of which may the Offer shall be waived by at the time that is one minute following 11:59 p.m., Eastern time, on the date that is 20 business days (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) after the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Merger Sub expressly reserves the right to waive, in its sole discretion, provided in whole or in part, any Offer Condition or modify the terms of the Offer in any manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) waive, amend or modify the Minimum Tender Condition or add to the conditions set forth in Exhibit ATermination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in the remainder of this Section 1.11.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vvi) change the form or terms of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed to by Parent and the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or (iiirrespective of whether the Minimum Tender Condition has been satisfied) and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval The Nasdaq Global Market (“Nasdaq”) applicable to the Offer. ; provided that Merger Sub agrees that: (A) in the event it would otherwise shall not be entitled required to terminate extend the Offer beyond the Outside Date. In addition, if at any the otherwise scheduled expiration thereof due to the failure of one or more date of the conditions set forth in Offer each Offer Condition (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be shall have been satisfied or waivedwaived and the Minimum Tender Condition shall not have been satisfied, it shall give the Company notice thereof and, at the request of Merger Sub may elect to (and if so requested by the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to), extend the Offer until the earlier for one or more consecutive increments of (1) such time duration as such condition is, or conditions are, satisfied or waived and (2) the date chosen requested by the Company but not more than ten business days each (or for such longer period as may be agreed to by Parent and the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood ); provided that the Company shall not be entitled to make such request if it is then in breach of this AgreementMerger Sub to, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right not be required to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyto, extend the Offer for such period as may pursuant to this sentence on more than three occasions; provided, further, that Merger Sub shall not, and shall not be requested by required to extend the Company not to exceed ten business days from such scheduled expiration dateOffer beyond the Outside Date. Subject to On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer (which shall be the next business day after the expiration of the Offer absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer; provided, however, that notwithstanding . The time at which Merger Sub first irrevocably accepts for purchase the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date shares of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be Company Common Stock tendered in the OfferOffer is referred to as the “Offer Closing Time”. If, at any scheduled The Offer may not be terminated or withdrawn prior to its expiration date prior to October 1(as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), 1997unless this Agreement is validly terminated in accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, there Merger Sub shall have been tenderedpromptly terminate the Offer and return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar daysregistered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain include an offer to purchase and a related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A hereto (such Schedule 14D-1 TO, as amended from time to time, and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Company Common Stock as and to the extent required by applicable U.S. federal securities Law. The Company shall not contain any untrue statement of a material fact or omit furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and Merger Sub shall (x) provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable) and (y) give reasonable and good faith consideration to any comments made by the Company or its counsel. Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) If, between the date of this Agreement and the Offer and to perform Closing Time, the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of its shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other obligations pursuant to this Agreementsimilar transaction, then the Offer Price shall be appropriately adjusted.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement conditions of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, use commercially reasonable efforts to commence within three (3) Business Days (and in any event Merger Sub shall, and Parent shall cause Merger Sub to, commence within ten (10) Business Days), the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which C as such conditions may be waived by Merger Sub modified in its sole discretion, provided that, without accordance with the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the express terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be midnight (New York City time) on the Offertwentieth (20th) business day following commencement of the Offer (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderas amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right in its sole discretion to waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of the Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AC or modify any condition set forth in Exhibit C in any manner adverse to the holders of the Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholdersCompany Common Stock. The initial expiration date shall be September 15, 1997parties hereto agree to cooperate in good faith to modify the terms of the Offer as and if required by the SEC. Notwithstanding any provision of this Agreement to the foregoingcontrary, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with its terms, if at the otherwise scheduled expiration date of the Offer any condition to the Offer is not satisfied, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Offer for one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be agreed by the Company); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. Upon the mutual written consent of the parties hereto, each in order its sole discretion, Merger Sub shall extend the Offer on one or more occasions for an aggregate period of not more than ten (10) Business Days each to obtain any material regulatory approval applicable the extent that, on such expiration date, all conditions to the Offer are satisfied but the shares of Company Common Stock that have been validly tendered and not validly withdrawn pursuant to the Offer, considered together with all other shares of Company Common Stock owned by Parent and its subsidiaries, shall constitute less than ninety percent (90%) of the outstanding shares of Company Common Stock. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more If all of the conditions set forth in Exhibit C are satisfied but the first sentence number of shares of the introductory paragraph Company Common Stock that have been validly tendered and not withdrawn in the Offer and accepted for payment, together with any shares of the Company Common Stock then owned by Parent or paragraphs Merger Sub, is less than ninety percent (a) or (g90%) of Exhibit A to be satisfied or waived, it shall give the outstanding shares of the Company notice thereof andCommon Stock, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of Merger Sub may in its sole discretion make available one (1) such time as such condition isor more “subsequent offering periods”, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with Rule 14d-11 of the terms Exchange Act, of this Section 1.1(a); not less than ten (10) Business Days and not more than twenty (B20) Business Days in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer aggregate for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateall subsequent offering periods. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of Tax pursuant to Section 2.02(h)) all shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, Offer (as it may be extended and re-extended in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and accordance with this Section 1.01(a)). Nothing contained in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered this Section 1.01(a) shall affect any termination rights in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Article VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents shall comply as Parent and Merger Sub agree to form in take all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and steps necessary to cause the Offer Documents on to be disseminated to holders of shares of the date first published, sent or given Company Common Stock as and to the Company's stockholders, extent required by the Exchange Act. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer DocumentsDocuments or reasonably requested by Parent and Merger Sub for inclusion therein. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, respect and to correct any material omissions therein; and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Parent, Merger Sub or their counsel may receive from or engage in with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or the commencement or occurrence of any such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Merger Sub shall not terminate the Offer and prior to perform any scheduled expiration thereof without the prior written consent of its other obligations the Company, except in the event that this Agreement is terminated pursuant to Article VIII. In the event that this AgreementAgreement is terminated pursuant to Article VIII prior to any scheduled expiration thereof, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the purchase of shares of the Company Common Stock in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of the Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Global Defense Technology & Systems, Inc.)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but after the date that this Agreement is executed by Parent, Sub and the Company, Parent and Sub shall amend the Offer to reflect this Agreement and amend the conditions to the Offer in no event later than the fifth business day from and including the accordance herewith. The expiration date of the public announcement Offer shall be the tenth day, other than a Saturday, Sunday or a day on which banks are authorized by law to close in New York, New York (each a "BUSINESS DAY"), from and after the date the Offer is amended to provide for the purchase of all of the outstanding shares of Company Common Stock in accordance with the terms of this Agreement. The Offer shall be made pursuant to a supplement to Sub's offer to purchase, Merger Sub shalldated August 8, 2002 and contained in the Schedule TO, and Parent shall cause Merger Sub toa related letter of transmittal (such Schedule TO and the documents included therein pursuant to which the Offer will be made, commence together with any supplements or amendments thereto, the Offer"OFFER DOCUMENTS") containing the terms and conditions set forth in this Agreement and in form reasonably satisfactory to the Company. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the "OFFER CONDITIONS") (any of which may be waived in whole or in part by Merger Parent and Sub in its sole their reasonable discretion, provided that, without the consent of the Company, Merger except that Parent and Sub shall not waive the Minimum Condition (as defined in Exhibit A)without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger and Sub expressly reserves reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Parent and Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Price; (iii) modify amend or add to the conditions set forth in Exhibit A, Offer Conditions; (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, ; (v) change the form of or reduce the consideration payable in the Offer (other than by increasing the cash offer price) Offer; or (vi) amend or modify any other term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Stockholders. Notwithstanding the foregoing, Merger Parent and Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) shall extend the OfferOffer for no longer than five Business Days at any one time, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) may extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SECCOMMISSION") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; (Aiii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason on one or more occasions for an aggregate period as may be requested by of not more than 10 Business Days beyond the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the latest expiration date that would otherwise be permitted under clause (i) or (ii) of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% this sentence; or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, (iv) may extend the Offer for such number one or more subsequent offering periods of days (up to an additional 20 calendar days) as Business Days in the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein aggregate pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements Rule 14d-11 of the Securities Exchange Act of 1934, as amended (together with the rules and regulations thereunder, the "EXCHANGE ACT"); provided that, in the case of clause (iv) above, Sub shall immediately accept for payment and promptly pay for all shares of Company Common Stock validly tendered, and not properly withdrawn, during the initial offering period in accordance with Rule 14d-11 of the Exchange Act. Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer, Sub shall, and Parent shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for, as promptly as practicable after the date on which Sub first accepts shares for payment pursuant to the Offer (such date, regardless of whether Parent and Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the "ACCEPTANCE DATE"), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer.
(b) As promptly as practicable after this Agreement is executed by Parent, Sub and the ------------ rules Company, Parent and regulations promulgated thereunder Sub shall file with the Commission an amendment to the Schedule TO. The Schedule TO shall reflect the terms of this Agreement, amend the conditions to the Offer in accordance herewith and contain the Offer Documents. Parent and Sub agree that the Offer Documents shall comply in all material respects with the Exchange Act and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except ; provided that no representation covenant is made by Parent or Merger Sub with respect to information supplied by the Company in writing or any Company Stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended or supplemented corrected, to be filed with the SEC Commission and the other Offer Documents, as so corrected, to be disseminated to the Company's stockholdersCompany Stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC Commission or dissemination to stockholders of the CompanyCompany Stockholders. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff Commission with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
Samples: Merger Agreement (Omnicare Inc)
The Offer. (a) Subject to the provisions terms and conditions of this AgreementAgreement (including ARTICLE VIII), as promptly as practicable but in no event later than the fifth business day from and including within ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer; provided, that the Company agrees that no shares of Company Common Stock owned by the Company or any Company Subsidiary will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be 5:00 p.m., Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the OfferNew York City time, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderon July 1, 2010. Merger Sub expressly reserves the right to right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) impose conditions to the Offer (other that are different than by increasing or in addition to the cash offer price) Offer Conditions, or (viv) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of Company Common Stock.
(ii) Notwithstanding anything in this Agreement to the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoingcontrary, Merger Sub (A) may, in its sole discretion (subject to the obligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions in increments of no more than five (5) Business Days, if at the on any then-scheduled expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement), until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC") or ”), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iii) In addition to the extension obligation set forth in Section 1.1(a)(ii)(B), Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, (A) in the event it would otherwise be entitled to terminate Minimum Tender Condition is not satisfied, (B) the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs subsection (a) or (gv) of Exhibit A is not satisfied, and prior to be such expiration the Company did not have at least five (5) days written notice from Parent of the facts or circumstances underlying the failure of such condition, or (C) the condition set forth in subsection (vii) of Exhibit A is not satisfied, but in each case all of the Offer Conditions set forth in Exhibit A other than those described above are satisfied or or, in Merger Sub’s sole discretion, waived, it then Merger Sub shall, and Parent shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely cause Merger Sub to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs case of clause (dA) or clause (eC) of Annex A are applicable); provided that if -------- any above, on the first such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companydate, extend the Offer for such period ten (10) Business Days (the “Initial Extension”), and if on the scheduled expiration date of the Initial Extension the requirements for extension pursuant to clause (A) or clause (C) (as the case may be) continue to be requested by satisfied, further extend the Company not to exceed ten business days from Offer for five (5) Business Days (the “Second Extension”), or (y) in the case of clause (B) above, on the first such scheduled expiration date. Subject , extend the Offer for five (5) Business Days; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times in the case of clause (A) or clause (C) (for a period of ten (10) Business Days for the Initial Extension and five (5) Business Days for the Second Extension), or more than one time, for five (5) Business Days, in the case of clause (B), and in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a)). The Offer Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; provided, however, that notwithstanding Offer is referred to in this Agreement as the -------- ------- foregoing Parent may“Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days (up to 20 calendar days) as a “subsequent offering period” in accordance with Rule 14d-11 under the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, however such period (including any extensions thereof) shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.not
Appears in 1 contract
Samples: Merger Agreement (Endo Pharmaceuticals Holdings Inc)
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth 10 business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”); provided, however, that Parent, Holdings and Merger Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The obligation obligations of Merger Sub to, and of Parent and Holdings to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the CompanyOffer shall be 12:00 midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-1(g)(3) of the OfferSecurities Exchange Act of 1934, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderas amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AA or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer for one or more consecutive increments of not more than seven business days each, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Offer Conditions is not be satisfied, until such time as such conditions are satisfied or waived or (iiB) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. In addition, if at the otherwise scheduled expiration date of the Offer any Offer Condition is not satisfied, Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate shall, and Parent and Holdings shall cause Merger Sub to, extend the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company for one or more consecutive increments of not more than seven business days each (or for such longer period as may be agreed by Parent and the Company); provided that Merger Sub shall not be required to, if such conditions are reasonably likely and Parent and Holdings shall not be required to be satisfied during the requested extension periodcause Merger Sub to, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) beyond the date chosen by that is 90 days after the Company, which shall not be later than (x) December 31, 1997 or (y) initial expiration date of the date on which Offer only if the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition Minimum Tender Condition is not satisfied by the date so chosen by the Companyat such time. In addition, the Company may request and Merger Sub shall may make further extensions of the Offer available one or more “subsequent offering periods”, in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure Rule 14d-11 of the Minimum Condition to be satisfiedExchange Act, it shallof at least three and not more than 20 business days each, at unless Parent has become the request owner, directly or indirectly, of 90% or more of the Company, extend the Offer for such period as may be requested by the outstanding shares of Company not to exceed ten business days from such scheduled expiration dateCommon Stock. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered in accordance with the terms of the Offer and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent mayOffer and, in its sole discretionany event, extend the expiration date of no more than two business days after the Offer Closing Date. The date on which Merger Sub first accepts for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result payment the shares of such extension 90% or more of the Shares will be Company Common Stock tendered in the Offer. If, at any scheduled expiration date prior Offer is referred to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997“Offer Closing Date”.
(b) On the date of commencement of the Offer, Parent Parent, Holdings and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents Company shall comply as furnish to form in Parent, Holdings and Merger Sub all material respects with information concerning the requirements of Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Holdings, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Parent, Holdings and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities lawsLaws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent Parent, Holdings and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Holdings, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent, Holdings and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent, Holdings and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer Offer.
(d) Parent, Holdings and Merger Sub shall be entitled to perform any of its other obligations deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Holdings or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign tax Law. To the extent amounts are so withheld and paid over to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this AgreementAgreement as having been paid to the Person in respect of which such deduction and withholding was made.
Appears in 1 contract
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth eight business day from and including days) after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer to purchase all of the outstanding shares of Company Common Stock; provided, that the Company agrees that no shares of Company Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rule 14d-1(g)(3) under the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderExchange Act). Merger Sub expressly reserves the right to right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (iA) reduce the number of shares of Company Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (D) add to the Offer (other than by increasing the cash offer price) Conditions, or (viE) otherwise amend or modify any term of the Offer in any manner adverse to the holders of Company Common Stock.
(ii) Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, any of the Company's stockholders. The initial expiration date shall be September 15conditions to the offer (including the Minimum Tender Condition and the other conditions and requirements set forth herein and in Exhibit A) is not satisfied or, 1997. Notwithstanding the foregoingin Merger Sub’s sole discretion, waived, then Merger Sub mayshall, without and Parent shall cause Merger Sub to, extend the consent Offer for successive periods of time to be determined at the sole discretion of the CompanyMerger Sub; provided, but subject however, that in no event shall Merger Sub be required to extend the Company's right Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to Section 8.1(b)(ii), ARTICLE VIII.
(iiii) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of tax pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that as soon as practicable after Merger Sub becomes obligated is legally permitted to purchase do so under applicable Law. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; providedOffer is referred to in this Agreement as the “Offer Closing”, however, that notwithstanding and the -------- ------- foregoing Parent maydate on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act, and the Offer Documents (up to 20 calendar daysas defined below) as the Company may request. No such request shall be made by the Company ifmay, in its Merger Sub’s sole judgmentdiscretion, it concludes that the Merger could be consummated on or prior to October 6, 1997provide for such a reservation of right. Nothing contained in this Section 1.1(a) shall affect any termination rights in ARTICLE VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”), which shall contain an offer to purchase and a related letter of transmittal and summary advertisement and other appropriate ancillary offer documents (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and the ------------ rules and regulations promulgated thereunder and cause the Offer Documents on the date first published, sent or given to be disseminated to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light stockholders of the circumstances under which they were made, not misleading, except that no representation is made Company as and to the extent required by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documentsfederal securities laws. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided supplied by it for use inclusion or incorporation by reference in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the stockholders of the Company's stockholders, in each case as soon as reasonably practicable and as and to the extent required by applicable Federal federal securities laws. The Parent and Merger Sub shall promptly notify the Company upon the receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and its counsel shall be given a reasonable opportunity promptly provide the Company with copies of all correspondence and summaries of all material oral communications between them and their representatives, on the one hand, and the SEC, on the other hand. Prior to review the filing of the Offer Documents and all amendments and supplements thereto prior to their filing (including any amendment or supplement thereto) with the SEC or dissemination thereof to the stockholders of the Company. , or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub agree to shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response, and Parent and Merger Sub shall give reasonable consideration to any such comments. In the event that Parent or Merger Sub receives any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, each shall use its reasonable best efforts to (i) respond promptly after to such comments and (ii) take all other actions necessary to resolve the receipt of such commentsissues raised therein.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds consideration necessary to purchase pay for any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and shall cause Merger Sub to perform any fulfill all of its other Merger Sub’s obligations pursuant to under this Agreement.
(d) Parent, Merger Sub or the paying agent for the Offer (the “Paying Agent”) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent, Merger Sub or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations issued pursuant thereto (the “Code”), or any provision of state or local Tax law. To the extent that amounts are so withheld and paid over by Parent, Merger Sub or the Paying Agent to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Company Common Stock in respect of which such deduction and withholding was made by Parent, Merger Sub or the Paying Agent.
Appears in 1 contract
Samples: Merger Agreement (Nupathe Inc.)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable (but in no event later than the fifth business day from and including ten (10) Business Days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent A. The initial expiration date of the Company, Merger Sub Offer shall not waive be midnight (New York City time) on the Minimum Condition twentieth (as defined in Exhibit A)20th) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion business day following commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-1(g)(3) of the OfferSecurities Exchange Act of 1934, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderas amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right to waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of the Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition, add to the conditions set forth in Exhibit AA or modify any condition set forth in Exhibit A in any manner adverse to the holders of the Company Common Stock, (iv) except as otherwise provided in the remainder of this Section 1.11.1(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in In addition, if at the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with any condition to the terms of this Section 1.1(a); and (B) in the event that Offer is not satisfied, Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyand Parent shall cause Merger Sub to, extend the Offer for up to two (2) consecutive increments of not more than five (5) Business Days each (or for such longer period as may be agreed by the Company) (each such period an “Extension Period”); provided, however, that Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, extend the Offer beyond the Outside Date. Following the second Extension Period, Merger Sub may, if requested by the Company Company, make available one (1) or more “subsequent offering periods”, in accordance with Rule 14d-11 of the Exchange Act, of not to exceed less than ten business days from such scheduled expiration date(10) Business Days and not more than twenty (20) Business Days in the aggregate for all subsequent offering periods. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any withholding of Tax pursuant to Section 4.4(f)) all shares of the Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents shall comply as Parent and Merger Sub agree to form in take all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and steps necessary to cause the Offer Documents on to be disseminated to holders of shares of the date first published, sent or given Company Common Stock as and to the Company's stockholders, extent required by the Exchange Act. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer DocumentsDocuments or reasonably requested by Parent and Merger Sub for inclusion therein. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, respect and to correct any material omissions therein; and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Parent, Merger Sub or their counsel may receive from or engage with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or the commencement or occurrence of any such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) Merger Sub shall not terminate the Offer and prior to perform any scheduled expiration thereof without the prior written consent of its other obligations the Company, except in the event that this Agreement is terminated pursuant to Article 9. In the event that this AgreementAgreement is terminated pursuant to Article 9 prior to any scheduled expiration thereof, Merger Sub shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by Merger Sub, or this Agreement is terminated prior to the purchase of shares of the Company Common Stock in the Offer, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of the Company Common Stock to the registered holders thereof.
Appears in 1 contract
Samples: Merger Agreement (Gtsi Corp)
The Offer. (a) Subject to the provisions of this Agreement, and so long as promptly as practicable but in no event later than the fifth business day from and including the date none of the public announcement events or circumstances set forth in subsections (a) through (d) of this AgreementAnnex A hereto shall have occurred and be continuing, Merger Sub shall, and Parent shall cause Merger Sub to, as promptly as practicable (and in any event on or before the 10th calendar day after the date hereof) to commence (within the Offermeaning of Rule 14d-2 promulgated under the Exchange Act) the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, any shares of Common Stock for Shares validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer shall be subject only solely to the those conditions set forth in Exhibit Annex A. The conditions to the Offer set forth on Annex A (any are for the benefit of which Merger Sub and may be asserted or waived only by Merger Sub in its sole discretionSub; provided, provided thathowever, that without the prior consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit Annex A). The initial expiration date of the Offer (the “Initial Expiration Date”, and any expiration date after the Initial Expiration Date, the “Expiration Date”) and shall be the 20th Business Day following the commencement of the Offer.
(b) Merger Sub expressly reserves the right, in its sole discretion, to modify the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer; provided, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offerhowever, except that, that without the prior consent of the Company, Merger Sub shall not no modification or change may be made which (i) reduce decreases the number of shares of Common Stock subject to the OfferOffer Price (except as permitted by this Agreement), (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) changes the cash offer priceMinimum Condition, (iv) reduces or limits the number of Shares sought pursuant to the Offer, (v) changes the conditions to the Offer in a manner adverse to the holders of the Shares, (vi) amend imposes additional conditions to the Offer, (vii) extends the Offer except as provided in the next sentence, or modify (viii) makes any term other change which is adverse to the holders of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the then-scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation ’s obligations to purchase shares of Common Stock accept for payment and pay for Shares shall not be satisfied or waived, extend and re-extend the Offer on one or more occasions for such period as is reasonably necessary to permit such conditions to be satisfied, until such time as such conditions are satisfied or waived or (ii) extend and re-extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer, and (iii) extend and re-extend the Offer on one or more occasions for an aggregate period of not more than 20 Business Days beyond the latest Expiration Date that would otherwise be permitted under clause (i) or (ii) of this sentence if, as of such date, the Minimum Condition has been satisfied but less than 90% of the outstanding Shares (on a fully diluted basis, excluding any Shares issuable pursuant to Section 1.5) have been validly tendered and not properly withdrawn; provided that Parent and Merger Sub irrevocably waive (A) the conditions to the Offer or in order set forth on Annex A and agree not to obtain any material regulatory approval applicable to assert such conditions as a basis for not consummating the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2B) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs pursuant to Sections 9.1(b)(i), (diii) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateiv). Subject to the terms and the conditions of the Offer and this Agreement, as soon as practicable after expiration of the Offer, Merger Sub shall accept for payment and pay for, and Parent shall cause Merger Sub to accept for payment and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer. Notwithstanding the foregoing, Merger Sub may in its sole discretion elect to provide for a subsequent offering period pursuant to, and on the terms required by, Rule 14d-11 under the Securities Exchange Act of 1934, as amended (“Exchange Act”).
(c) At the request of the Company, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for until such number of days (up to 20 calendar days) date as the Company may requestconditions set forth in Annex A have been satisfied; provided that such conditions are reasonably capable of being satisfied before the Outside Date. No such request Notwithstanding the foregoing, nothing contained in this Agreement shall be made by require Merger Sub to extend the Company if, in its sole judgment, it concludes that Offer beyond the Merger could be consummated on or prior to October 6, 1997Outside Date.
(bd) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement TO (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any all amendments and supplements or amendments thereto and including all exhibits thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects “Schedule TO”) which will on the date filed with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), SEC and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a ’s stockholders comply in all material fact or omit to state any material fact required to be stated therein or necessary in order to make respects with the statements therein, in light provisions of the circumstances under Exchange Act and the rules and regulations thereunder and any other applicable U.S. federal securities laws, and will contain the offer to purchase relating to the Offer and form of the related letter of transmittal (such Schedule TO and the documents included therein pursuant to which they were the Offer shall be made, not misleadingtogether with any supplements or amendments thereto and including the exhibits thereto, except are referred to herein collectively as the “Offer Documents”), provided, however, that no representation representation, warranty or covenant hereby is made or will be made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in, or information derived from the Company’s public SEC filings which is incorporated by reference or included in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case holders of Shares as and to the extent required by applicable Federal the U.S. federal securities laws. Parent shall deliver copies of the proposed forms of the Offer Documents to the Company and its counsel in advance of filing with the SEC and the commencement of the Offer and shall provide a reasonable opportunity for review and comment by the Company and its counsel. The Offer Documents shall be in a form reasonably acceptable to the Company. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all any amendments and supplements thereto to the initial Offer Documents prior to their filing with the SEC or dissemination to stockholders of the Company’s stockholders. Parent and Merger Sub agree to shall promptly provide the Company and its counsel any comments Parentcomments, written or oral, that Merger Sub Sub, Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of any such comments, and provide the Company and its counsel a reasonable opportunity to participate in preparation of responses to SEC comments. Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect and Parent and Merger Sub further agree to take all steps necessary to cause the Schedule TO as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the stockholders of the Company, in each case, as and to the extent required by applicable U. S. federal securities laws.
(ce) Parent hereby guarantees the full and timely performance of all of Merger Sub’s obligations under this Agreement and shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Common Stock Shares and Company Warrants that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
Samples: Merger Agreement (Analex Corp)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth ten business day from and including days following the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"); provided, however, that the obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be is subject only to the Minimum Tender Condition and the satisfaction or waiver of the other conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent Annex I. The initial expiration date of the Company, Merger Sub Offer (the "Expiration Date") shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rule 14d-2 promulgated by the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms and conditions of the OfferOffer and to waive any condition set forth in Annex I, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) reduce or modify the Minimum Tender Condition, (iv) modify or add to the conditions set forth in Exhibit AAnnex I in any manner adverse to the holders of Company Common Stock (other than Parent and its subsidiaries), (ivv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, Offer or (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer in increments of not more than ten business days each, if at the scheduled expiration date Expiration Date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or (but in no event, other than the existence of a Company Takeover Proposal, shall Sub be permitted to extend the Offer beyond the 90th business day after the date of this Agreement (the "Outside Date")), (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (iii) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC) beyond the Outside Date, if the number of shares of Company Common Stock that have been validly tendered and not withdrawn represent less than 90% of the issued and outstanding shares of Company Common Stock on a fully-diluted basis. Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate that the Offer Minimum Tender Condition is not satisfied at any the scheduled expiration thereof due to the failure of one or more Expiration Date of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof andOffer, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, extend the Expiration Date of the Offer in increments of not more than five business days each until the earliest to occur of (w) the satisfaction of the Minimum Tender Condition, (x) the reasonable determination by Parent that the Minimum Tender Condition is not capable of being satisfied on or prior to the Outside Date, (y) the termination of this Agreement in accordance with its terms and (z) the Outside Date. On the terms and upon the prior satisfaction or waiver of the conditions of the Offer set forth in Annex I, (i) Parent shall provide or cause to be provided to Sub, and deposited with the Paying Agent referred to in Section 2.02 on a timely basis, funds necessary to accept for payment, and to pay for, any Shares tendered pursuant to the Offer and (ii) Sub shall, and Parent shall cause Sub to, accept for 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 immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, Offer and in its sole discretion, extend the expiration date of the Offer for a period any event not to exceed ten later than three business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997expiration.
(b) On As soon as practicable on the date of commencement of the Offer, Sub shall, and Parent and Merger shall cause Sub shall to, file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement any related documents (such Schedule 14D-1 TO and the documents and exhibits included or incorporated by reference therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents Company shall comply as to form cooperate in all material respects with the requirements preparation of the Securities Exchange Act of 1934, as amended (the "Exchange Act")Offer Documents, and the ------------ rules Company and regulations promulgated thereunder its counsel will be given a reasonable opportunity to review and comment on the Offer Documents on before they are filed with the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer DocumentsSEC. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to shall provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Imagex Com Inc)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent Conopco shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligation of Merger Sub to, and of Parent Conopco to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent Section 7.01. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-2 of the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms of the Offer or waive any condition to the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Company Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify reduce or waive the Minimum Tender Condition (as defined in Section 7.01), (iv) modify, in any manner adverse to the holders of Company Common Stock, or add to to, the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer7.01, (v) extend the Offer or (vi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer in increments of not more than five business days each, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (iii) make available a subsequent offering period (within the meaning of Rule 14d-11 of the SEC). Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate the Offer at that any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Section 7.01 is not satisfied or waived, it shall give waived at the Company notice thereof andscheduled expiration date of the Offer, at the request of the CompanyCompany Sub shall, if such conditions are reasonably likely to be satisfied during the requested extension periodand Conopco shall cause Sub to, extend the expiration date of the Offer in increments of five business days each until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2w) the date chosen by the Companysatisfaction or waiver of such condition, which shall not be later than (x) December 31Conopco reasonably determines that such condition to the Offer is not capable of being satisfied on or prior to September 30, 1997 or 2000, (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach termination of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the its terms of this Section 1.1(a); and (Bz) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfiedSeptember 30, it shall2000. In addition, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to on the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent Conopco and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer DocumentsOFFER DOCUMENTS"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of ParentConopco, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Conopco and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersshareholders, in each case as and to the extent required by applicable Federal securities laws. The Company Conopco and its counsel Sub shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel in writing with any comments ParentConopco, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Conopco Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article VIII, and subject to the provisions terms and conditions of this Agreement, as promptly as practicable practicable, but in no event later than the fifth business day from tenth (10th) Business Day after the Agreement Date (subject to the Company having timely provided any information required to be provided by it pursuant to Section 1.2 and including the date of the public announcement of this AgreementSection 1.3(e)), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offer. meaning of Rule 14d-2 promulgated by the SEC under the Exchange Act) the Offer to purchase all of the outstanding shares of Company Stock (other than shares of Company Common Stock to be cancelled pursuant to Section 2.7(b)), at a price per share of Company Stock equal to the applicable Offer Price, subject to any required withholding of Taxes, net to the seller in cash without interest, on the terms and subject to the conditions set forth in this Agreement.
(b) The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Company Stock validly tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A Annex I (any of which as they may be waived amended in accordance with this Agreement, collectively, the “Offer Conditions”). The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Tender Condition, and the other Offer Conditions. Parent and Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent expressly reserve the right to purchase all (but are not required to) increase the Offer Price, waive any Offer Condition (other than the Minimum Tender Condition, which is non-waivable) or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, Offer in their sole discretion; except that, notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Company Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth Offer Conditions or change, modify or waive any Offer Condition in Exhibit Aa manner adverse to any holder of Company Stock in its capacity as such, (iv) extend or otherwise change the Expiration Time (except as provided in required or permitted by the remainder provisions of this Section 1.11.1(c)), extend the Offer, or (v) change the form of consideration payable in the Offer Offer.
(other than by increasing the cash offer pricec) or (vi) amend or modify any term The initial expiration time of the Offer in any manner adverse to any (the “Initial Expiration Time”) shall be one minute after 11:59 p.m. Eastern Time on the twentieth (20th) Business Day following the commencement of the Company's stockholders. The initial expiration date shall be September 15Offer (determined using Rule 14d-1(g)(3) and 14d-2 under the Exchange Act), 1997. Notwithstanding unless the foregoingInitial Expiration Time has been extended pursuant to, Merger Sub mayand in accordance with, without the consent provisions of this Section 1.1(c) or as required by applicable Law or the interpretations of the CompanySEC (the Initial Expiration Time or such later time and date on which the Initial Expiration Time has been extended pursuant to, but subject and in accordance with this Agreement, the “Expiration Time”). Subject to the Company's right parties’ rights to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's Article VIII and Merger Sub's ’s right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs waive any Offer Condition (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of other than the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this AgreementTender Condition), Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares extend the Offer from time to time (i) as required by any rule, regulation, interpretation or position of Common Stock validly tendered and not withdrawn pursuant the SEC or the staff thereof applicable to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration Offer, and (ii) if, as of the Offer; providedthen-scheduled Expiration Time, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the any Offer for a period Condition shall not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shallsatisfied or 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 up to five (5) Business Days (calculated as set forth in Rule 14d-1(g)(3) under the Exchange Act) each (or such longer period as the parties hereto may agree) until such time as each such condition shall have been satisfied or waived; provided, however, that (1) in no event shall Merger Sub be required to extend the Offer beyond the Outside Date or the valid termination of this Agreement in accordance with Article VIII, (2) if, at any otherwise scheduled Expiration Time, all of the Offer Conditions except for the Minimum Tender Condition shall have been satisfied or waived, Merger Sub shall in such situation be required to extend the Offer in consecutive increments of up to five (5) Business Days each but in no event more than twenty (20) Business Days in the aggregate (or such other period as the parties hereto may agree), (3) Merger Sub may extend the Offer for such number of days (up to 20 calendar daystwenty (20) as Business Days in order to determine whether the Company may request. No such request Offer Condition set forth in clause (c) of Annex I has been satisfied, and (4) if the Expiration Time is concurrent with or after a Notice Period, then Merger Sub shall be made extend the Offer if requested by the Company ifBoard, or may extend the Offer at its election, in its sole judgment, it concludes that accordance with Section 5.2(f) for the Merger could number of Business Days provided therein. The Offer shall not be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and extended by Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"except as specifically provided in this Section 1.1(c). The Offer --------------- Documents may not be terminated prior to the Expiration Time (as such Expiration Time may be extended and re-extended in accordance with this Section 1.1(c)) unless this Agreement is validly terminated in accordance with Article VIII. In the event that this Agreement is terminated pursuant to Article VIII prior to any scheduled expiration thereof, Merger Sub shall comply as (and Parent shall cause Merger Sub to) promptly (and in any event within one (1) Business Day after such termination), irrevocably and unconditionally terminate the Offer.
(d) On the terms and subject to form in all material respects with the requirements conditions of the Securities Exchange Act of 1934Offer and this Agreement, as amended Merger Sub shall (and Parent shall cause Merger Sub to) promptly after the Expiration Time, accept for payment (the "Exchange Act"time of such acceptance, the “Acceptance Time”), and after the ------------ rules Acceptance Time pay for, all shares of Company Stock validly tendered and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given not validly withdrawn pursuant to the Company's stockholders, Offer. Parent shall not contain any untrue statement of a material fact provide or omit to state any material fact required cause to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Company Stock that Merger Sub becomes obligated to purchase pursuant to the Offer or the Transactions. The Offer Price shall, subject to any required withholding of Taxes, be net to the seller in cash without interest, upon the terms and subject to perform the conditions of the Offer.
(e) If the Offer is terminated by Merger Sub, or this Agreement is terminated in accordance with Article VIII, Merger Sub shall promptly return, and shall cause any depository acting on behalf of its other obligations pursuant Merger Sub to this Agreementreturn, all tendered shares of Company Stock to the registered holders thereof in accordance with the terms of the Offer and applicable Law.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated and subject to the provisions of this AgreementAgreement and the conditions set forth on Annex A hereto, as promptly as practicable after the date hereof, but in no event later than the fifth ten business day from and including the date of days following the public announcement of the terms of this Agreement, Merger Sub shall, and Parent Logitech Subsidiary shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Offer. The obligation of Merger Sub to, and of Parent Logitech Subsidiary to cause Merger Sub to, commence the Offer and accept for payment, and pay for, payment any shares of Common Stock Shares tendered pursuant to in the Offer shall be subject only to the satisfaction of only those conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent on Annex A. The initial expiration date of the Company, Merger Sub Offer shall not waive be the Minimum Condition 20th "business day" (as such term is defined in Exhibit A)Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and to 14d-2 under the terms and conditions of this AgreementExchange Act). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent and Logitech Subsidiary expressly reserve the right to purchase all or waive any portion of the Shares tendered pursuant condition to the Offer, but no such assignment shall relieve Parent Offer or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not, and Logitech Subsidiary shall not cause Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Cash Portion or reduce the Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Portion, (iii) waive or change the Minimum Condition (as defined in Annex A), (iv) modify in any manner adverse to the holders of Company Common Stock or add to the conditions to the obligation of Merger Sub to, or Logitech Subsidiary to cause Merger Sub to, accept for payment any Shares tendered in the Offer set forth in Exhibit Annex A, (ivv) except as provided in the remainder of this Section 1.1next two sentences, extend the Offer, Offer or (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, without the consent of the Company, but subject (x) extend the Offer for any period required by any rule, regulation, interpretation of the Securities and Exchange Commission (the "SEC") or the staff thereof; (y) from time to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived waived; or (iiz) extend the Offer for any reason on one or more occasions for an aggregate period required by any rule, regulation, interpretation or position of not more than 10 business days beyond the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it latest expiration date that would otherwise be entitled to terminate permitted under clause (x) or (y) of this sentence if on such expiration date there shall not have been tendered (and not properly withdrawn) at least 90% of the Offer at outstanding Shares on a Fully Diluted Basis. Logitech Subsidiary and Merger Sub agree that, if any scheduled expiration thereof due to the failure of one or more of the conditions to the Offer set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit on Annex A to be are not satisfied or waivedthen, it shall give the Company notice thereof and, at the request of the Company, if provided that such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier capable of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied or any such event has occurred; provided, however, that in no event shall Merger Sub be required to extend the Offer beyond July 15, 2001. Following expiration of the Offer, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to, make available a "subsequent offering period" in accordance with Rule 14d-11 of the Exchange Act. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Logitech Subsidiary shall cause Merger Sub to, accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer as soon as practicable after the expiration of the Offer. With respect to any such number of days (up to 20 calendar days) as Shares the Company may request. No such request Cash Portion shall be made net to the seller thereof in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997such seller.
(b) On the date of commencement of the Offer, Parent shall file with the SEC a Registration Statement on Form F-4, which will include a preliminary prospectus containing the information required under Rule 14d-4(b) under the Exchange Act to register the offer and sale of Registered Parent Shares represented by Parent ADSs pursuant to the Offer (as the same may be supplemented or amended, the "Form F-4"). On the date of commencement of the Offer, Logitech Subsidiary and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (together with any communications filed with the SEC under cover of Schedule TO prior to commencement of the Offer in accordance with Rule 14d-2(b) under the Exchange Act, and as such Schedule TO may be supplemented or amended, the "Schedule TO") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO, the Form F-4 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of ParentLogitech Subsidiary, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Logitech Subsidiary and Merger Sub further agrees to shall, upon becoming aware that such information shall have become false or misleading in any material respect, take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO and Form F-4 as so amended or supplemented to be filed with the SEC and for the other Offer Documents, as so amended or supplemented, to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Logitech Subsidiary and Merger Sub shall give the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination disseminated to the stockholders of the Company. Parent Logitech Subsidiary and Merger Sub agree to shall provide the Company and its counsel in writing with any comments Parent, Logitech Subsidiary or Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall provide the Company and its counsel with a reasonable opportunity to participate in the response of Logitech Subsidiary and/or Merger Sub to such comments.
(c) . Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase not issue certificates or scrip representing fractional Parent ADSs pursuant to the Offer and to perform any Offer. Logitech Subsidiary will pay cash in lieu of its other obligations pursuant to this Agreementfractional Parent ADSs in accordance with the provision set forth in the last two sentences of Section 2.4(d) hereof.
Appears in 1 contract
Samples: Merger Agreement (Labtec Inc /Ma)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement by Parent and the Company of this Agreement, Merger Sub shall, and Parent Purchaser shall cause Merger Sub to, commence the Offer, with the initial scheduled expiration date of the Offer (subject to the extensions permitted by this Agreement) being the 20th business day after commencement. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub Purchaser in its sole discretion, provided that, without the consent of the Company, Merger Sub except that Purchaser shall not waive the Minimum Condition (as defined in Exhibit A)) without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify increase or reduce the dealer's soliciting fee, (iv) amend or add to the conditions set forth in Exhibit AOffer Conditions, (ivv) except as provided in the remainder last sentence of this Section 1.1paragraph, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend or modify any other term of the Offer in any manner adverse to any the holders of the Company's stockholdersShares. The initial Subject to the terms and conditions of the Offer and this Agreement, Purchaser shall accept for payment, and pay for, all Shares validly tendered pursuant to the Offer that Purchaser becomes obligated to accept for payment, and pay for, pursuant to the Offer as promptly as practicable after the expiration date shall be September 15of the Offer (such date, 1997the "Takedown Date"). Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer as a result of an increase in the Offer Price by Purchaser in light of a bona fide competing offer from a third party for some or in order to obtain any material regulatory approval applicable to all of the Offer. Merger Sub agrees that: Shares and (ii) (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by a period, in the Company aggregate, of not to exceed ten more than five business days from such if, at the initial scheduled expiration date. Subject to the terms and conditions date of the Offer and this AgreementOffer, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock the Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to are less than 90% of the outstanding Shares and (B) following the period contemplated by clause (ii) (A) (the "Initial Extension Period") if any of the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretionConditions have not been waived or satisfied, extend the Offer on one or more occasions for periods not to exceed five business days until January 31, 2000; provided that, (x) if at the expiration date of the Offer, as so extended, the Offer for a period Conditions have been satisfied or waived (including the deemed waivers described in clauses (y) and (z) below), Purchaser shall not continue to exceed ten business days and in no event ending after December 31extend the Offer (unless required by clause (i), 1997above), if Parent reasonably believes that as a result of such extension 90% or more (y) following the Initial Extension Period, Purchaser shall be deemed to have waived satisfaction of the Shares will be tendered conditions set forth in paragraphs (b), (e), (f) and (h) of Exhibit A hereto with respect to matters existing on or before the last day of the Initial Extension Period and (z) in the Offer. Ifevent Purchaser extends the Offer after the Initial Extension Period following written notice from the Company of an event constituting a Material Adverse Change, at any scheduled expiration date prior Purchaser shall be deemed to October 1, 1997, there shall have been tenderedwaived satisfaction of the conditions set forth in paragraph (c) of Exhibit A hereto with respect, and not withdrawnonly with respect, fewer than 90% of to the Sharesevent for which it has received such written notice; provided further, then Merger Sub shallthat all time periods set forth above in this sentence shall be tolled, at the request election of Purchaser, during the pendency of the Company, extend the Offer for such number of days No Takedown Period (up to 20 calendar daysas defined in Section 6.2(b) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997below).
(ba) On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Purchaser agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation covenant is made by Parent or Merger Sub Purchaser with respect to information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub Purchaser and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub Purchaser further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub Purchaser agree to provide the Company and its counsel any comments Parent, Merger Sub Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(cb) Parent shall contribute provide or cause to Merger Sub be provided to Purchaser on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Common Stock Shares that Merger Sub Purchaser becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject Upon the terms and subject to the provisions conditions of this AgreementAgreement (including Article IX), as promptly as practicable (but in no event later than the fifth business day from and including ten (10) Business Days following the date of the public announcement of this Agreement, ) Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Exchange Act, the Offer; provided, that the Company agrees that no shares of Common Stock owned by the Company will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by amended in accordance with this Agreement, the “Offer Conditions”).
(i) The initial Expiration Date shall be 12 midnight, New York City time, at the end of the 20th Business Day following commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act). Parent and Merger Sub expressly reserve the right, at any time, to, in its their sole discretion, provided thatwaive, without the consent of the Companyin whole or in part, Merger Sub shall not waive the Minimum any Offer Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, neither Parent nor Merger Sub shall not (iA) reduce the number of shares of Common Stock subject to the Offer, (iiB) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (C) change, modify or waive the Minimum Tender Condition, (D) impose conditions to the Offer (other that are different than by increasing or in addition to the cash offer price) Offer Conditions, or (viE) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of Common Stock.
(ii) Notwithstanding anything in this Agreement to the Company's stockholders. The initial expiration date shall be September 15contrary, 1997. Notwithstanding the foregoing, Parent and Merger Sub (A) may, in their sole discretion (subject to the obligations of Parent and Merger Sub under Section 2.1(a)(ii)(B)), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for any period if, if at the on any then-scheduled expiration date Expiration Date, any of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Conditions shall not be satisfiedsatisfied or, if in Parent’s or Merger Sub’s sole discretion, waived (if permitted under this Agreement) until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer (1) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or , the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (“Nasdaq”) applicable to the Offer. Merger Sub agrees that: , (A2) in for a period beginning on the event it would otherwise be entitled to terminate commencement of, and ending 10 Business Days after the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs cessation of, (a) any general suspension in trading in, or limitation on prices for, securities on any national securities exchange or in the over the counter market in the U.S., (b) a declaration of a banking moratorium or any suspension of payments in respect of a banking moratorium or any suspension of payments in respect of banks in the U.S. (whether or not mandatory), or (gc) any limitation (whether or not mandatory) imposed by any Governmental Entity on the extension of Exhibit A credit by banks or other lending institutions in the U.S., and (3) until any waiting period (and any extension thereof) applicable to be satisfied or waived, it shall give the Company notice thereof and, at the request consummation of the CompanyOffer under the HSR Act and any applicable competition, if such conditions are reasonably likely antitrust or investment Laws of jurisdictions other than the U.S. shall have expired or been terminated; provided, however, that in no event shall Parent or Merger Sub be required to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, beyond the Termination Date or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 at any time that Parent or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right Sub are permitted to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs pursuant to Article IX.
(diii) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any required Tax withholding of Taxes pursuant to Section 7.13) all shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the Expiration Date (as it may be extended and re-extended in accordance with this Section 2.1(a)). The Offer Price payable in respect of each share of Common Stock pursuant to the preceding sentence shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement. Acceptance for payment of shares of Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the OfferOffer is referred to in this Agreement as the “Offer Closing”, and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date”. Parent and Merger Sub expressly reserve the right to, in their sole discretion, following the Offer Closing, extend the Offer for a “subsequent offering period” in accordance with Rule 14d-11 under the Exchange Act; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a such period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at (including any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar daysextensions thereof) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.exceed
Appears in 1 contract
The Offer. (a) Subject to Provided that none of the provisions of this Agreementconditions set forth on Exhibit A hereto shall have occurred and be continuing, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement (on the date hereof or the following day) by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer, conduct and consummate the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole or in part by Merger Sub in its sole discretion, ; provided that, without the express written consent of the Company, Merger Sub shall may not waive the Minimum Stockholder Agreement Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify alter any other term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer for a specified period, if at the scheduled or any extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (AC) in the event it would otherwise be entitled to terminate extend the Offer at any scheduled expiration thereof due for up to ten business days if there have not been validly tendered and not withdrawn prior to the failure expiration of one or the Offer such number of Shares that, together with Shares subject to the Stockholder Agreement which have not been validly tendered, would constitute at least 90% of the fully diluted Shares as of the date of determination and (D) extend the Offer for any reason for up to two business days; provided that no more than three extensions shall be permitted under clauses (C) and (D) of this sentence. Subject only to the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedA, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (such Schedule 14D-1, as supplemented or amended from time to time, the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder thereunder, and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to written information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary sufficient to purchase accept for payment, and pay for, any shares of Common Stock and all Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(d) Sub shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer such amounts as may be required to be deducted and withheld with respect to perform the making of such payment under the Internal Revenue Code of 1986, as amended (the "Code"), or under any provision of its other obligations pursuant state, local or foreign tax law; provided, however, that Sub shall promptly pay any amounts deducted and withheld hereunder to this Agreementthe applicable governmental authority, shall promptly file all tax returns and reports required to be filed in respect of such deductions and withholding, and shall promptly provide to the Company proof of such payment and a copy of all such tax returns and reports.
Appears in 1 contract
Samples: Merger Agreement (Corange LTD)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including the date of the public announcement of this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to use commercially reasonable efforts to commence within five (5) Business Days from the date hereof (and in any event Purchaser shall, and Parent shall cause Purchaser to, commence within ten (10) Business Days from the Offerdate hereof), the Offer within the meaning of the applicable rules and regulations of the SEC. The obligation obligations of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and accept for payment, and pay for, any shares of the Company Common Stock tendered pursuant to the Offer shall be subject only to (i) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of the Company Common Stock that, together with shares of the Company Common Stock already owned by Parent and Purchaser or their respective Affiliates, which shall include, for the avoidance of doubt, Xxxxxx X. Xxxxxxxx, would represent at least a majority of the Fully Diluted Shares (the “Minimum Tender Condition”) and (ii) the satisfaction, or waiver by Parent or Purchaser, of the other conditions and requirements set forth in Exhibit A (any of which C as such conditions may be waived by Merger Sub modified in its sole discretion, provided that, without accordance with the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the express terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion The initial expiration date of the Shares tendered pursuant to Offer shall be midnight (New York City time) on the Offer, but no such assignment shall relieve Parent or Merger Sub twentieth (20th) Business Day following commencement of its obligations hereunderthe Offer (determined using Rule 14d-1(g)(3) of the Exchange Act). Merger Sub Purchaser expressly reserves the right in its sole discretion to waive, in whole or in part, any condition to the Offer or modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of the Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit A, (iv) except as provided C or modify any condition set forth in Exhibit C in any manner adverse to the remainder Company or the holders of this Section 1.1, extend the OfferCompany Common Stock, (v) except as otherwise provided in this Section 2.1(a), extend the Offer or change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the Company or the holders of the Company's stockholdersCompany Common Stock. The initial expiration date shall be September 15, 1997. Notwithstanding parties hereto agree to cooperate in good faith to modify the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date terms of the Offer as and if required by the SEC. Notwithstanding any provision of this Agreement to the conditions to Merger Sub's obligation to purchase shares of Common Stock contrary, Purchaser shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer; provided, however, that Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, extend the Offer beyond the Outside Date. In addition, unless this Agreement has been terminated in accordance with its terms, if at the otherwise scheduled expiration date of the Offer (i) any condition to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate is not satisfied, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer at any scheduled expiration thereof due to the failure of for one (1) or more consecutive increments of not more than ten (10) Business Days each (or for such longer period as may be agreed to by the Company) and (ii) if the Marketing Period has not ended at the time of the satisfaction or waiver of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedC, it shall give the Company notice thereof andPurchaser may, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodand Parent may cause Purchaser to, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and to a date that is not more than (2) two Business Days after the date chosen by end of the CompanyMarketing Period; provided, which however, that Purchaser shall not be later than (x) December 31required to, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company and Parent shall not be entitled required to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companycause Purchaser to, extend the Offer for such period as may be requested by beyond the Company not to exceed ten business days from such scheduled expiration dateOutside Date. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, accept and pay for (subject to any withholding of Tax pursuant to Section 3.2(e)) all shares of the Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, Offer (as it may be extended and re-extended in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and accordance with this Section 2.1(a)). Nothing contained in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered this Section 2.1(a) shall affect any termination rights in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Article VIII.
(b) On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC SEC, pursuant to and in accordance with Rule 14d-3 and Regulation M-A under the Exchange Act, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Offer --------------- Documents shall comply as Parent and Purchaser agree to form in take all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and steps necessary to cause the Offer Documents on to be disseminated to holders of shares of the date first published, sent or given Company Common Stock as and to the Company's stockholders, extent required by the Exchange Act. The Company shall not contain any untrue statement of a material fact or omit promptly furnish to state any material fact Parent and Purchaser all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer DocumentsDocuments or reasonably requested by Parent and Purchaser for inclusion therein. Each of Parent, Merger Sub Purchaser and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, respect and to correct any material omissions therein; and each of Parent and Merger Sub further agrees to Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and the Offer Documents, as so amended or supplemented, to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaws. Parent and Merger Sub agree to Purchaser shall provide the Company and its counsel copies of any written comments, and shall inform the Company and its counsel of any oral comments or discussions, that Parent, Merger Sub Purchaser or their counsel may receive from or engage in with the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentscomments or the commencement or occurrence of any such discussions. Prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the stockholders of the Company, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Purchaser shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(c) Parent shall contribute provide or cause to Merger Sub be provided to Purchaser on a timely basis the funds necessary to purchase any shares of the Company Common Stock that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer.
(d) Purchaser shall not terminate the Offer and prior to perform any scheduled expiration thereof without the prior written consent of its other obligations the Company, except in the event that this Agreement is terminated pursuant to Article VIII. In the event that this AgreementAgreement is terminated pursuant to Article VIII prior to any scheduled expiration thereof, 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. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated prior to the purchase of shares of the Company Common Stock in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered shares of the Company Common Stock to the registered holders thereof.
Appears in 1 contract
The Offer. (a) Subject to the provisions terms and conditions of this AgreementAgreement (including ARTICLE VIII), as promptly as practicable but in no event later than the fifth business day from and including within ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), the Offer; provided, that the Company agrees that no shares of Company Common Stock owned by the Company or any Company Subsidiary will be tendered pursuant to the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver (to the extent permitted under this Agreement) of the conditions set forth in Exhibit A (any of which as they may be waived by Merger Sub amended in its sole discretionaccordance with this Agreement, provided that, without the consent “Offer Conditions”).
(i) The initial expiration date of the CompanyOffer shall be 5:00 p.m., Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the OfferNew York City time, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderon July 1, 2010. Merger Sub expressly reserves the right to right, at any time, to, in its sole discretion, waive, in whole or in part, any Offer Condition or modify the terms of the Offer; provided, except however, that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Tender Condition (as defined in Exhibit A), (iv) impose conditions to the Offer (other that are different than by increasing or in addition to the cash offer price) Offer Conditions, or (viv) otherwise amend or modify any term of the Offer in any manner materially adverse to any the holders of Company Common Stock.
(ii) Notwithstanding anything in this Agreement to the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoingcontrary, Merger Sub (A) may, in its sole discretion (subject to the obligations of Parent and Merger Sub under Section 1.1(a)(ii)(B) and Section 1.1(a)(iii)), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions in increments of no more than five (5) Business Days, if at the on any then-scheduled expiration date of the Offer Offer, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or, in Merger Sub’s sole discretion, waived (if permitted under this Agreement), until such time as such condition or conditions are satisfied or waived or and (iiB) shall extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "“SEC") or ”), the staff thereof applicable --- to or the Offer or in order to obtain any material regulatory approval Nasdaq Stock Market (the “Nasdaq”) applicable to the Offer. , and until any waiting period (and any extension thereof) applicable to the consummation of the Offer under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the “HSR Act”) and any other applicable foreign antitrust, competition or similar Law shall have expired or been terminated; provided, however, that in no event shall Merger Sub agrees that: be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iii) In addition to the extension obligation set forth in Section 1.1(a)(ii)(B), Parent and Merger Sub agree that if on any scheduled expiration date of the Offer, (A) in the event it would otherwise be entitled to terminate Minimum Tender Condition is not satisfied, (B) the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs subsection (a) or (gv) of Exhibit A is not satisfied, and prior to be such expiration the Company did not have at least five (5) days written notice from Parent of the facts or circumstances underlying the failure of such condition, or (C) the condition set forth in subsection (vii) of Exhibit A is not satisfied, but in each case all of the Offer Conditions set forth in Exhibit A other than those described above are satisfied or or, in Merger Sub’s sole discretion, waived, it then Merger Sub shall, and Parent shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely cause Merger Sub to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs case of clause (dA) or clause (eC) of Annex A are applicable); provided that if -------- any above, on the first such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companydate, extend the Offer for such period ten (10) Business Days (the “Initial Extension”), and if on the scheduled expiration date of the Initial Extension the requirements for extension pursuant to clause (A) or clause (C) (as the case may be) continue to be requested by satisfied, further extend the Company not to exceed ten business days from Offer for five (5) Business Days (the “Second Extension”), or (y) in the case of clause (B) above, on the first such scheduled expiration date. Subject , extend the Offer for five (5) Business Days; provided, however, that this provision shall not require Merger Sub to extend the expiration of the Offer more than two times in the case of clause (A) or clause (C) (for a period of ten (10) Business Days for the Initial Extension and five (5) Business Days for the Second Extension), or more than one time, for five (5) Business Days, in the case of clause (B), and in no event shall Merger Sub be required to extend the Offer (1) beyond the Outside Date or (2) at any time that Parent or Merger Sub is permitted to terminate this Agreement pursuant to ARTICLE VIII and does so terminate this Agreement.
(iv) On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept and pay for (subject to any applicable Tax withholding pursuant to Section 1.1(d)) all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase as soon as practicable after the expiration date of the Offer (as it may be extended and re-extended in accordance with this Section 1.1(a)). The Offer Price payable in respect of each share of Company Common Stock pursuant to the preceding sentence shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions of this Agreement. Acceptance for payment of shares of Company Common Stock pursuant to and subject to the conditions of the Offer immediately after upon the expiration of the Offer; provided, however, that notwithstanding Offer is referred to in this Agreement as the -------- ------- foregoing Parent may“Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Merger Sub expressly reserves the right to, in its sole discretion, extend the expiration date of following the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the CompanyClosing, extend the Offer for such number of days (up to 20 calendar days) as a “subsequent offering period” in accordance with Rule 14d-11 under the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); provided, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, however such period (including any extensions thereof) shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
exceed twenty (c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.20)
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including Promptly after the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to (and Merger Sub shall, and Parent shall cause Merger Sub to, use its commercially reasonable efforts to within 10 days after the date hereof), commence (within the meaning of Rule 14d-2 promulgated under the Exchange Act) the Offer to purchase all Company Shares for the Stock Consideration or the Cash Consideration, at the election of the Stockholders, and otherwise as herein provided. In the Offer. , each Company Share accepted by Merger Sub in accordance with the terms and subject to the conditions of the Offer shall be exchanged for the right to receive from Merger Sub, at the election of the holder: (i) $1.35 in cash, without interest (as adjusted pursuant to Section 2.1(c)(i), the “Cash Consideration”), or (ii) .7764 shares of Parent Common Stock (as adjusted pursuant to Section 2.1(c)(ii), the “Stock Consideration”), in each case subject to proration as set forth in Section 2.1(e).
(b) The obligation of Merger Sub toto accept for payment or exchange, and of Parent to cause Merger Sub topay for or exchange, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered Company Shares pursuant to the Offer shall be subject only to the Minimum Condition (as defined in Annex A hereto) and to the other conditions set forth in Exhibit Annex A attached hereto (any of which may be waived by collectively, the “Offer Conditions”). Merger Sub expressly reserves the right, in its sole discretion, provided that, discretion and without the consent of the Company, Merger Sub shall not waive to increase the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered consideration payable pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub provided the Cash Consideration does not exceed 50% of its obligations hereunder. Merger Sub expressly reserves the right total consideration payable in the Offer, and to modify the terms waive any condition of the Offer, except thatprovided that the conditions described in clauses (b) and (c)(ii), without (iii), (iv) and (v) of the Offer Conditions shall not be waivable. Subject to satisfaction or waiver (if permitted pursuant to the foregoing) of the Offer Conditions as of the Expiration Date and to the extension rights described in Section 2.1(i) below, Merger Sub shall, and Parent shall cause Merger Sub to, promptly accept for payment or exchange all Company Shares that have been validly tendered and not withdrawn pursuant to the Offer, and Merger Sub shall not otherwise extend the Offer. The Company agrees that no Company Shares held by the Company or any of its Subsidiaries will be tendered in the Offer. Without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Company Shares subject to the Offer, (ii) reduce the price per share of Common Cash Consideration or Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Consideration, (iii) waive or modify or add to the conditions set forth in Exhibit AMinimum Condition, (iv) except as provided add to or modify any Offer Conditions or amend any term of the Offer set forth in this Agreement, in each case, in any manner materially adverse to the remainder holders of this Section 1.1Company Shares, extend the Offer, or (v) change the form of consideration payable in consideration.
(c) In the Offer (other than by increasing the cash offer price) event that on or (vi) amend or modify any term before consummation of the Offer in any manner adverse Parent and the Company receive the items described on Schedule 6.21 according to any the terms thereof, and the amount of the Company's stockholders. The initial expiration date Galil Termination Fee exceeds (the amount of such excess, if any, the “Galil Adjustment Amount”) the amount Parent pays to Galil under Section 6.21(a), if any (such amount actually paid by Parent to Galil, the “Galil Payment”):
(i) the Cash Consideration shall be September 15increased by the quotient obtained by dividing (A) the Galil Adjustment Amount, 1997by (B) the total number of Company Shares outstanding on the date hereof (the “Per Share Adjustment Amount”); and
(ii) the Stock Consideration shall be increased by a fraction of a share of Parent Common Stock equal to the quotient obtained by dividing (A) the Per Share Adjustment Amount, by (B) $1.61.
(d) Subject to Sections 2.1(e), (f) and (g), each holder of Company Shares shall be entitled to elect (i) the number of Company Shares which such holder desires to exchange for the right to receive the Cash Consideration (a “Cash Election”), and (ii) the number of Company Shares which such holder desires to exchange for the right to receive Stock Consideration (a “Stock Election”). Notwithstanding For the foregoingavoidance of doubt, a holder of Company Shares shall be permitted to make a Stock Election with respect to a portion of such holder’s Company Shares and make a Cash Election with respect to such holder’s other Company Shares. Any Cash Election or Stock Election shall be referred to herein as an “Election,” and shall be made on a form furnished by Merger Sub mayfor that purpose, without the consent included as part of the Companyletter of election and transmittal accompanying the Offer, but subject each in a form that is reasonably satisfactory to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii). Holders of record who hold Company Shares as nominees, (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer trustees or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure other representative capacities may submit multiple Forms of one or more Election on behalf of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or their respective beneficial holders.
(e) The maximum aggregate amount of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn cash payable pursuant to the Offer shall be equal to (x) the Cash Consideration multiplied by (y) 50% of the total number of Company Shares outstanding that Merger Sub becomes obligated to are tendered (and not withdrawn) and accepted for purchase pursuant to the Offer immediately after (such amount, the expiration “Cash Consideration Cap”). The maximum aggregate amount of Stock Consideration issuable pursuant to the Offer shall be (x) the Stock Consideration multiplied by (y) 75% of the Offer; provided, however, total number of Company Shares outstanding that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of are tendered (and not withdrawn) and accepted for exchange pursuant to the Offer for a period not to exceed ten business days and (such amount, the “Stock Consideration Cap”), provided that in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of shall the Shares will be tendered in Stock Consideration Cap exceed the Offer. If, at any scheduled expiration date prior product of: (1) the amount equal to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90(A) 19.9% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or shares of Parent Common Stock outstanding immediately prior to October 6, 1997.
(b) On the date of commencement consummation of the Offer, Parent less (B) the product of (y) the total number of Company Shares issuable upon exercise of the then outstanding Company Warrants and (z) the Stock Merger Sub shall file with Consideration, multiplied by (2) the SEC a Tender Offer Statement on Schedule 14D-1 with respect quotient obtained by dividing (y) the total number of Company Shares outstanding that are tendered (and not withdrawn) and accepted for purchase pursuant to the Offer, which shall contain an offer to purchase and a related letter by (z) the total number of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply Company Shares outstanding as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsdate.
(ci) Parent If the total number of Cash Elections would require aggregate cash payments in excess of the Cash Consideration Cap, all such Elections shall contribute be subject to Merger Sub proration as follows. For each Cash Election, the number of Company Shares that shall be converted into the right to receive the Cash Consideration shall be (A) the total number of Company Shares subject to such Cash Election multiplied by (B) the Cash Proration Factor, rounded down to the nearest whole Company Share. The “Cash Proration Factor” means a fraction (x) the numerator of which shall be the Cash Consideration Cap and (y) the denominator of which shall be the product of the aggregate number of Company Shares subject to all Cash Elections made by all holders of Company Shares, multiplied by the Cash Consideration. All Company Shares subject to a Cash Election, other than Company Shares converted into the right to receive the Cash Consideration in accordance with this Section 2.1(e)(i), shall be converted into the right to receive the Stock Consideration. All prorations resulting from this Section 2.1(e)(i) shall be applied on a timely basis pro rata basis, such that each Stockholder who tenders Company Shares subject to a Cash Election bears its proportionate share of the funds necessary proration, based on the percentage of the total Company Shares subject to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant a Cash Election tendered by such Stockholder to the Offer and aggregate Company Shares tendered subject to perform any of its other obligations pursuant to this AgreementCash Elections.
Appears in 1 contract
Samples: Merger Agreement (Endocare Inc)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Article VIII, Purchaser shall cause Sub to (i) commence (within the provisions meaning of this Agreement, Rule 14d-2 of the Exchange Act) the Offer as promptly as practicable after the date hereof (but in no event not later than the fifth business day from January 21, 2011) and including the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (ii) consummate the Offer, subject to the terms and conditions hereof. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, purchase and pay for, any shares of Common Stock for Shares tendered pursuant to the Offer shall be subject only to the absence of, or waiver of the presence of (subject to the limitations in the proviso of Section 2.1(b)) the conditions set forth in Exhibit Annex A (the “Tender Offer Conditions;” the absence of, or waiver of the presence of, the Tender Offer Conditions is referred to hereinafter as “satisfaction or waiver of” the Tender Offer Conditions).
(b) Purchaser, on behalf of Sub, expressly reserves the right from time to time, subject to Section 2.1(c), to waive any of which may be waived by Merger Sub the Tender Offer Conditions or to increase the Offer Price or to make any other changes in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger the Offer; provided that (i) no Person (including Purchaser, Sub and the Company) may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent waive the right to purchase all or any portion condition in clause “(i)” of Annex A (the “Minimum Condition”) and (ii) without the prior written consent of the Shares tendered pursuant Company acting through the Special Committee, no change in the Offer may be made which decreases the Offer Price, changes the form of consideration to be paid in the Offer, but no such assignment reduces the maximum number of Public Shares to be purchased in the Offer, imposes conditions to the Offer in addition to the Tender Offer Conditions or which otherwise modifies the Tender Offer Conditions, reduces the period of time during which the Offer shall relieve Parent remain open, extends the Offer (except for any extension required or Merger Sub permitted pursuant to Section 2.1(c)) or amends any other term of its obligations hereunderthe Offer (A) in a manner adverse to the holders of Public Shares or (B) which would delay consummation of the Offer as reasonably determined by the Board acting through the Special Committee. Merger Sub expressly reserves the right Subject to modify the terms of the Offer, except that, without Offer and this Agreement and the consent of the Company, Merger Sub shall not satisfaction or waiver (i) reduce the number of shares of Common Stock subject to the Offerlimitations in the proviso in this Section 2.1(b)) of all of the Tender Offer Conditions as of the Expiration Date, (ii) reduce Sub shall, and Purchaser shall cause Sub to, as soon as possible after such Expiration Date, accept for payment, purchase and pay the price per share of Common Stock to be paid Offer Price in cash for each Public Share validly tendered and not withdrawn pursuant to the Offer (except the date of acceptance for payment, the “Acceptance Date” and the time for acceptance for payment, the “Acceptance Time”). Purchaser shall provide, or cause to be provided, to Sub on a timely basis funds sufficient to purchase and pay for any and all Public Shares that Sub becomes obligated to accept pursuant to Section 3.4the Offer. For the avoidance of doubt, Sub shall pay the Offer Price for any Public Shares accepted for payment in the Offer as promptly as practicable.
(c) The Offer shall remain open until 5:00 p.m. Eastern Time on the date (the “Expiration Date”) that is twenty (20) Business Days after the commencement of the Offer (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act), (iii) modify or add to unless Sub shall have extended the conditions set forth period of time for which the Offer is open pursuant to, and in Exhibit Aaccordance with, (iv) except as provided in the remainder of this Section 1.12.1(c), extend in which event the term “Expiration Date” shall mean the latest time and date the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholdersas so extended, may expire. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it If at any date that would otherwise be entitled an Expiration Date: (i) any of the Tender Offer Conditions is not satisfied or waived (subject to terminate the limitations in the proviso in Section 2.1(b) and subject to Section 2.1(d)) by Sub (including by Purchaser on behalf of Sub), Sub shall extend the Offer at any scheduled expiration thereof due from time to time for periods of not more than ten (10) Business Days until the date on which all of the Tender Offer Conditions are satisfied or waived (subject to the failure of one or more limitations in the proviso in Section 2.1(b) and subject to Section 2.1(d)); (ii) all of the conditions set forth Tender Offer Conditions have been satisfied or waived (subject to the limitations in the first sentence of proviso in Section 2.1(b)) and the introductory paragraph or paragraphs (a) or (g) of Exhibit A Marketing Period has not ended on the last Business Day prior to be satisfied or waivedsuch Expiration Date, it Sub shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2A) the date chosen by first (1st) Business Day after the Company, which shall not be later than (x) December 31, 1997 or (y) Lender has waived the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement condition in the event that Debt Commitment Letter relating to the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); Marketing Period and (B) in the event that Merger Sub would otherwise be entitled to terminate first (1st) Business Day after the Offer at any scheduled expiration date thereof due solely to the failure final day of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the OfferMarketing Period; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar daysiii) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The the Lender, five (5) Business Days have not lapsed since the Company has issued a press release or other public announcement disclosing its results of operations for the fiscal quarter and its counsel year ending December 31, 2010, which press release or announcement shall be given contain at a reasonable opportunity to review minimum all material GAAP financial measures consistent with the Company’s prior practices (the “Earnings Release”), Sub shall extend the Offer Documents and all amendments and supplements thereto prior until the fifth (5th) Business Day after the day the Company issued the Earnings Release; provided that the Expiration Date shall not be extended under clauses “(i)”, “(ii)” or “(iii)” above to their filing with the SEC or dissemination to stockholders of a date later than May 9, 2011 without the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments’s written consent.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject Provided that this Agreement shall not have been terminated and subject to the provisions of this Agreementterms hereof, as promptly as practicable practicable, but in no event later than the fifth five (5) business day from and including the date of days after the public announcement of this Agreementthe execution hereof by the parties, Merger Sub shall, Acquisition shall (and Parent shall cause Merger Sub Acquisition to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer"Exchange Act")), the Offer for any and all of the Shares, at the Offer Price. The obligation of Merger Sub to, Acquisition to accept for payment and to pay for any Shares tendered (and the obligation of Parent to cause Merger Sub to, commence the Offer and Acquisition to accept for payment, payment and to pay for, for any shares of Common Stock tendered pursuant to the Offer Shares tendered) shall be subject only to (i) the condition that at least a majority of Shares on a fully-diluted basis (including for purposes of such calculation all Shares issuable upon exercise of all vested Company Stock Options (as defined in Section 3.2(a)) and unvested Company Stock Options that vest prior to the Final Date, but excluding any Shares held by the Company or any of its subsidiaries) be validly tendered (the "Minimum Condition"), and (ii) the other conditions set forth in Annex A. Acquisition expressly reserves the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, no change may be made that (i) decreases the Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iii) reduces the maximum number of Shares to be purchased in the Offer, (iv) imposes conditions to the Offer in addition to those set forth in Annex A, (v) amends the conditions set forth in Exhibit Annex A to broaden the scope of such conditions, (any vi) extends the Offer except as provided in Section 1.1(b), or (vii) amends the Minimum Condition. It is agreed that the conditions set forth in Annex A are for the sole benefit of which Parent and Acquisition and may be waived by Merger Sub Parent and Acquisition, in its whole or in part at any time and from time to time, in their sole discretion, provided thatother than the Minimum Condition, as to which prior written Company approval is required. The failure by Parent and Acquisition at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered in the Offer. 8
(b) Subject to the terms and conditions thereof, the Offer shall expire at midnight, New York City time, on the date that is twenty (20) business days after the date the Offer is commenced; provided, however, that without the consent of the Company's Board of Directors (the "Company Board"), Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub Acquisition may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject from time to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any term of the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) time extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfiedhave been satisfied or waived, until such time as such conditions are satisfied or waived or waived; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; or (Aiii) in extend the event it Offer for any reason on one or more occasions for an aggregate period of not more than twenty (20) business days beyond the latest expiration date that would otherwise be entitled to terminate permitted under clause (i) or (ii) of this sentence if on such expiration date there shall not have been tendered at least 90% of the Offer at outstanding Shares. Parent and Acquisition agree that, if any scheduled expiration thereof due to the failure of one or more of the conditions to the Offer set forth on Annex A are not satisfied and none of the events set forth in the first sentence of the introductory paragraph or paragraphs (a) or through (gf) of Exhibit Annex A that would permit Acquisition not to be satisfied or waived, it shall give the Company notice thereof and, accept tendered Shares for payment has occurred and is continuing at the request time of any scheduled expiration date of the CompanyOffer, if then, provided, that such conditions are reasonably likely capable of being satisfied and no such event has occurred on or prior to be satisfied during the requested extension period(and is continuing on) September 15, 1999, Acquisition shall extend the Offer until the earlier of (1) such from time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- time unless any such condition is not no longer reasonably capable of being satisfied by the date so chosen by the Companyor any such event has occurred; provided, the Company may request and Merger Sub however, that in no event shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise Acquisition be entitled required to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration datebeyond September 15, 1999. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, Acquisition shall (and Parent shall cause Merger Sub Acquisition to) accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately Offer, as promptly as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(bc) On As soon as practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Sub Acquisition shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, and including all exhibits thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall contain as an offer exhibit or incorporate by reference the Offer to purchase Purchase (or portions thereof) and a forms of the related letter of transmittal and summary advertisement (such advertisement. Parent and Acquisition agree that they shall cause the Schedule 14D-1 and the documents and exhibits included therein pursuant to which 14D-1, the Offer will be made, to Purchase and all amendments or supplements thereto (which together with any supplements or amendments thereto, constitute the "Offer Documents"). The Offer --------------- Documents shall ) to comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and other Applicable Laws. Parent and Acquisition further agree that the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub Acquisition with respect to information supplied by the Company or any of its stockholders in writing specifically for inclusion or incorporation by reference in the Offer Documents. The Company agrees that the information provided by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of Parent, Merger Sub Acquisition and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub Acquisition further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their the filing thereof with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub Acquisition agree to provide in writing the Company and its counsel with any comments Parent, Merger Sub Acquisition or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Intel Corp)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from and including after the date of the public announcement by Buyer and the Company of this Agreement and in any event no later than seven (7) business days after the date of this Agreement, Merger Sub shall, and Parent Buyer shall cause Merger Sub toto commence a tender offer (as it may be amended from time to time as permitted under this Agreement, commence the “Offer”), with the initial expiration date of the Offer to be twenty (20) business days from the commencement of such Offer, to purchase all of the outstanding shares of common stock, par value $0.001 per share, of the Company (“Company Common Stock”) (and, if applicable, any associated rights pursuant to the Rights Agreement or other arrangement of similar effect) at a purchase price (the “Offer Price”) of $4.25 per share of Company Common Stock, net to the seller in cash, without interest thereon, upon the terms and subject to the conditions set forth in this Agreement. The obligation of Merger Sub to, and of Parent Buyer to cause Merger Sub to, to commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit Annex A (the “Offer Conditions”) (any of which may be waived in whole or in part by Buyer or Merger Sub in its sole their reasonable discretion, provided that, without the consent of the Company, except that Buyer and Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)without the consent of the Company) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Buyer and Merger Sub expressly reserves reserve the right to modify the terms of the Offer, except that, without the consent of the Company, Buyer and Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, ; (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), Price; (iii) modify amend or add to the conditions set forth in Exhibit A, Offer Conditions; (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, ; (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) Offer; or (vi) amend or modify any other term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Buyer and Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, Offer (A) if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived; provided, that notwithstanding anything to the contrary, if any of the conditions to the Offer are not satisfied or waived or (ii) on any scheduled expiration date of the Offer, Buyer and Merger Sub shall be required to extend the Offer until such condition or conditions are satisfied or waived unless such condition or conditions could not reasonably be expected to be satisfied by the Outside Date; provided further, that in no event shall Buyer and Merger Sub be required to extend the expiration date of the Offer beyond the Outside Date; (B) for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: ; or (AC) in after the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of Acceptance Date, for one or more subsequent offering periods of up to an additional twenty (20) business days in the aggregate pursuant to Rule 14d-11 of the conditions set forth in the first sentence Securities Exchange Act of the introductory paragraph or paragraphs 1934 (a) or (g) of Exhibit A to be satisfied or waivedsuch act, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreementamended, and that nothing in this Section 1.1 shall modify Parent's the rules and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Companyregulations promulgated thereunder, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a“Exchange Act”); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date). Subject to the foregoing and applicable law and upon the terms and subject to the conditions of the Offer and this AgreementOffer, Merger Sub shall, and Parent Buyer shall cause it to, accept for payment, as promptly as permitted under applicable securities laws, and pay for (after giving effect to any required withholding tax), as promptly as practicable after the date on which Merger Sub tofirst accepts shares for payment pursuant to the Offer (such date, pay regardless of whether Buyer and Merger Sub elect to provide for one or more subsequent offering periods pursuant to Rule 14d-11 of the Exchange Act, the “Acceptance Date”), all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent Buyer and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO (the “Schedule TO”), with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"”). The Buyer and Merger Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's ’s stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation covenant is made by Parent Buyer or Merger Sub with respect to information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of ParentBuyer, Merger Sub and the Company agrees agree promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent Buyer and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's ’s stockholders, in each case as and to the extent required by applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent Buyer and Merger Sub agree to provide the Company and its counsel any comments ParentBuyer, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent Buyer shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase accept for payment, and pay for, any shares of Company Common Stock that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth 10 business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”); provided, however, that Parent, Holdings and Merger Sub shall not be required to commence, or cause to be commenced, the Offer prior to the date on which the Company is prepared to file the Schedule 14D-9. The obligation obligations of Merger Sub to, and of Parent and Holdings to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the CompanyOffer shall be 12:00 midnight, Merger Sub shall not waive New York City time, on the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered pursuant to Offer (determined using Rule 14d-1(g)(3) of the OfferSecurities Exchange Act of 1934, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderas amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)). Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify waive or amend the Minimum Tender Condition, (iv) add to the conditions set forth in Exhibit AA or modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (ivv) except as otherwise provided in the remainder of this Section 1.11.01(a), extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer for one or more consecutive increments of not more than seven business days each, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall Offer Conditions is not be satisfied, until such time as such conditions are satisfied or waived or (iiB) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. In addition, if at the otherwise scheduled expiration date of the Offer any Offer Condition is not satisfied, Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate shall, and Parent and Holdings shall cause Merger Sub to, extend the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company for one or more consecutive increments of not more than seven business days each (or for such longer period as may be agreed by Parent and the Company); provided that Merger Sub shall not be required to, if such conditions are reasonably likely and Parent and Holdings shall not be required to be satisfied during the requested extension periodcause Merger Sub to, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) beyond the date chosen by that is 90 days after the Company, which shall not be later than (x) December 31, 1997 or (y) initial expiration date of the date on which Offer only if the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition Minimum Tender Condition is not satisfied by the date so chosen by the Companyat such time. In addition, the Company may request and Merger Sub shall may make further extensions of the Offer available one or more “subsequent offering periods”, in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure Rule 14d-11 of the Minimum Condition to be satisfiedExchange Act, it shallof at least three and not more than 20 business days each, at unless Parent has become the request owner, directly or indirectly, of 90% or more of the Company, extend the Offer for such period as may be requested by the outstanding shares of Company not to exceed ten business days from such scheduled expiration dateCommon Stock. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent and Holdings shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered in accordance with the terms of the Offer and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent mayOffer and, in its sole discretionany event, extend the expiration date of no more than two business days after the Offer Closing Date. The date on which Merger Sub first accepts for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result payment the shares of such extension 90% or more of the Shares will be Company Common Stock tendered in the Offer. If, at any scheduled expiration date prior Offer is referred to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997“Offer Closing Date”.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement has not been terminated in accordance with Article VIII, as promptly as practicable after the date of this Agreement, but in no event later more than the fifth business day from and including ten (10) Business Days after the date of the public announcement of this Agreement, Merger Sub shall (and Parent shall cause Merger Sub to) commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer; provided, however, that Merger Sub shall not be required to commence the Offer if the Company shall not be prepared to file the Schedule 14D-9 with the SEC substantially contemporaneously with Merger Sub’s filing of the Offer Documents with the SEC.
(b) Upon the terms and subject to the conditions set forth in this Agreement, including the prior satisfaction of the Minimum Condition (as defined in Annex I) and the satisfaction or waiver by Merger Sub of the other conditions set forth in Annex I (collectively, the “Offer Conditions”), Merger Sub shall (and Parent shall cause Merger Sub to), as promptly as practicable after the Expiration Date (as it may be extended in accordance with this Section 1.1), consummate the Offer in accordance with its terms and accept for payment, and promptly thereafter pay for, all Common Shares validly tendered and not validly withdrawn pursuant to the Offer.
(c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) in accordance with the terms set forth in this Agreement, the Minimum Condition and the other Offer Conditions. Merger Sub expressly reserves the right to (i) increase the Common Offer Price, (ii) waive any Offer Condition other than the Minimum Condition, and (iii) make any other changes in the terms and conditions of the Offer 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 the Company may withhold in its sole discretion), Merger Sub shall not (A) decrease the Common Offer Price, (B) change the form of consideration payable in the Offer, (C) decrease the maximum number of Common Shares subject to the Offer; (D) impose conditions to the Offer in addition to the Offer Conditions, (E) amend, modify or supplement any of the Offer Conditions, (F) amend or modify the Minimum Condition, or (G) extend or otherwise change the Expiration Date in a manner other than as required or permitted by this Agreement. Parent and Merger Sub may waive the Minimum Condition only with the prior written consent of the Company (which the Company may withhold in its sole discretion). The Offer may not be terminated or withdrawn prior to the Expiration Date, unless this Agreement is terminated in accordance with Article VIII.
(d) Unless extended pursuant to and in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) at the end of the day on the date that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the date on which the Offer is first commenced (within the meaning of Rule 14d-2 under the Exchange Act) (the “Initial Expiration Date”) or, in the event the Offer has been extended beyond the Initial Expiration Date pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (such Initial Expiration Date, or such later date and time to which the Offer has been extended pursuant to and in accordance with this Agreement, the “Expiration Date”).
(e) Merger Sub shall, and Parent shall cause Merger Sub to, commence extend the OfferOffer from time to time as follows: (i) if on the applicable Expiration Date, any of the Offer Conditions (including the Minimum Condition) have not been satisfied or, to the extent waivable by Parent or Merger Sub pursuant to this Agreement, waived by Parent or Merger Sub, then Merger Sub shall extend the Offer for successive periods of not more than ten (10) Business Days each (as determined by Merger Sub), or such other period as may be agreed by Parent and the Company, to permit the satisfaction of such Offer Conditions; and (ii) Merger Sub shall extend the Offer for the minimum period required by applicable Law, interpretation or position of the SEC or its staff or NASDAQ or its staff. The obligation of Nothing in this Section 1.1(e) shall (A) require Merger Sub to, and of Parent to cause Merger Sub to, commence without the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to Company’s prior written consent (which the Offer shall be subject only to the conditions set forth in Exhibit A (any of which Company may be waived by Merger Sub withhold in its sole discretion, provided that, without the consent of the Company, ) Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1permitted to, extend the Offer, (v) change Offer beyond the form of consideration payable in the Offer (other than by increasing the cash offer price) End Date or (viB) amend be deemed to impair, limit or modify any term of the Offer otherwise restrict in any manner adverse to any the right of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right Parties to terminate this Agreement pursuant to the terms of Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to 8.1. Neither Parent nor Merger Sub's obligation to purchase shares of Common Stock Sub shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for in any period required by any rule, regulation, interpretation or position manner other than pursuant to and in accordance with the provisions of this Section 1.1(e) without the prior written consent of the Securities Company (which the Company may withhold in its sole discretion).
(f) The Common Offer Price shall be adjusted proportionately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Shares), reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Shares or Preferred Shares occurring on or after the date hereof and Exchange Commission (the "SEC") at or the staff thereof applicable --- prior to the Offer or in order to obtain any material regulatory approval applicable Acceptance Time, and such adjustment to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Common Offer at any scheduled expiration thereof due Price shall provide to the failure holders of one or more of Common Shares the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A same economic effect as contemplated by this Agreement prior to be satisfied or waivedsuch action; provided, it shall give the Company notice thereof andhowever, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 1.1(f) shall modify Parent's and Merger Sub's right be construed to terminate this Agreement in the event that permit the Company to take any action with respect to its securities that is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied prohibited by the date so chosen by the Company, the Company may request and terms of this Agreement.
(g) Neither Parent nor Merger Sub shall make further extensions of terminate or withdraw the Offer prior to any applicable Expiration Date unless this Agreement is validly terminated in accordance with the terms of hereof. If this Section 1.1(a); and (B) Agreement is terminated in accordance with the event that terms hereof, then Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, shall (and Parent shall cause Merger Sub to) promptly (and in any event within twenty-four (24) hours of such termination), pay for all shares of Common Stock validly tendered irrevocably and unconditionally terminate the Offer, shall not withdrawn acquire any Shares pursuant to the Offer that Offer, and shall cause any depository acting on behalf of Merger Sub becomes obligated to purchase pursuant return, in accordance with applicable Law, all tendered Common Shares to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997registered holders thereof.
(bh) On As promptly as practicable on the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the OfferOffer (together with all amendments and supplements thereto and including exhibits thereto, which the “Schedule TO”) that shall contain an offer or incorporate by reference the Offer to purchase Purchase and a form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 advertisement, if any, and the any other ancillary Offer documents and exhibits included therein instruments pursuant to which the Offer will shall be made, together with any and (ii) cause the Offer to Purchase and related documents to be disseminated to all holders of Common Shares. Parent and Merger Sub agree that they shall cause the Schedule TO and all exhibits, amendments or supplements or amendments theretothereto (collectively, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made ”) filed by either Parent or Merger Sub with respect the SEC to information supplied by comply, in all material respects, with the Company in writing for inclusion in the Offer DocumentsExchange Act and other applicable Law. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it or any of its Representatives for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each shall supplement the information contained in the Offer Documents to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and Parent and Merger Sub further agrees shall use their best efforts to take all steps necessary to amend or supplement the Offer Documents and to promptly cause the Offer Documents as so amended corrected or supplemented to be filed with the SEC and to promptly be disseminated to the Company's stockholdersholders of Common Shares, in each case as and to the extent required by applicable Federal securities lawsLaw. The Company shall promptly furnish or otherwise make available in writing to Parent and Merger Sub or Parent’s legal counsel all information concerning the Company and the Company’s stockholders that is required by applicable Law or is reasonably requested by Parent to be included in the Offer Documents. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents and all amendments and supplements thereto prior to their the filing thereof with the SEC or dissemination to stockholders of the CompanySEC. Parent and Merger Sub agree to provide the Company and its counsel with any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Each of Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents or the Offer.
(ci) Parent shall contribute cause to be provided to Merger Sub on a timely basis all of the funds necessary to purchase any shares of Common Stock Shares that Merger Sub becomes obligated to purchase pursuant to the Offer Offer, and shall cause Merger Sub to perform any perform, on a timely basis, all of its other Merger Sub’s obligations pursuant to under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ceres, Inc.)
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Section 8, as promptly as practicable but reasonably practicable, and in no any event later than the fifth business day from and including within three Business Days after the date of this Agreement (subject to the public announcement of this AgreementCompany having timely provided any information required to be provided by it pursuant to Section 1.2), Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer. The obligation obligations of Merger Sub toPurchaser, and of Parent to cause Merger Sub toPurchaser, commence to accept for payment and pay for any Shares tendered pursuant to the Offer shall be subject to (i) the satisfaction of the Minimum Condition (as defined in Exhibit E hereto) and (ii) the satisfaction or waiver by Purchaser of each of the other conditions set forth in Exhibit E hereto (together with the Minimum Condition, the “Offer Conditions”). The obligation of Purchaser to accept for payment, and pay for, any payment shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A satisfaction or waiver of each of the Offer Conditions (and shall not be subject to any of which may be waived by Merger Sub other conditions). Purchaser expressly reserves the right, in its sole discretion, to (A) increase the Offer Price (by increasing the Cash Consideration and/or the amounts that may become payable pursuant to the CVR Agreement), (B) add additional milestones solely with respect to additional milestone payments to the CVR Agreement, (C) waive any Offer Condition or (D) modify any of the other terms or conditions of the Offer prior to the Acceptance Time to the extent not inconsistent with the terms of this Agreement, except that, unless otherwise provided thatby this Agreement, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Purchaser shall not (i1) reduce the number Offer Price or increase the Offer Price by an increment of shares of Common Stock subject to the Offerless than $0.05 per share, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v2) change the form of consideration payable in the Offer (other than by increasing the cash offer priceadding consideration as contemplated by Section 1.1(a)(A) or (viB)), (3) reduce the number of Shares sought to be purchased in the Offer, (4) waive, amend or change the Minimum Condition or the condition set forth in clause (h) of Exhibit E, (5) add to the Offer Conditions, (6) extend the expiration of the Offer except as required or permitted by Section 1.1(b), (7) provide for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act or (8) modify any Offer Condition or any term of the Offer set forth in any this Agreement in a manner adverse to any the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the consummation of the Company's stockholders. Offer or prevent, materially delay or impair the ability of the Parent or Purchaser to consummate the Offer, the Merger or the other Contemplated Transactions.
(b) The initial expiration Offer shall initially be scheduled to expire at midnight (New York City time) on the date shall be September 15that is 20 Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer (the “Initial Expiration Time”) or, 1997in the event the Initial Expiration Time 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 Time, or such later time to which the Initial Expiration Time has been so extended, the “Expiration Time”). Notwithstanding anything to the foregoingcontrary contained in this Agreement, Merger Sub but subject to the parties’ respective termination rights under Section 8: (i) if, as of the then-scheduled Expiration Time, any Offer Condition is not satisfied (unless such condition is waivable by Purchaser or Parent and has been waived), Purchaser may, in its discretion (and without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(iiCompany or any other Person), (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any ruleadditional periods of up to 10 Business Days per extension, regulationto permit such Offer Condition to be satisfied; and (ii) if, interpretation or position as of the Securities then-scheduled Expiration Time, any Offer Condition is not satisfied (unless such condition is waivable by Purchaser or Parent and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or has been waived, it shall give the Company notice thereof and), at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this AgreementPurchaser shall, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companycause Purchaser to, extend the Offer for such period as may be requested additional periods specified by the Company not of up to exceed ten business days from 10 Business Days per extension (or such scheduled expiration date. other period as the parties may agree), to permit such Offer Condition to be satisfied; provided, however, that in no event shall Parent or Purchaser (1) be required to extend the Offer beyond the earlier to occur of (x) the valid termination of this Agreement in accordance with Section 8 and (y) the End Date (such earlier occurrence, the “Extension Deadline”) or (2) be permitted to extend the Offer beyond the Extension Deadline without the prior written consent of the Company.
(c) Subject to the terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Purchaser will accept for payment (the date and time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the later of (i) the earliest time as of which Purchaser is permitted under the Exchange Act to accept for payment shares of Company Common Stock validly tendered (and not validly withdrawn) pursuant to the Offer and (ii) the earliest time as of which each of the Offer Conditions shall have been satisfied or waived. On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shallPurchaser shall promptly after the Acceptance Time pay, and Parent shall or cause Merger Sub tothe Paying Agent to pay, pay for all shares of Company Common Stock validly tendered (and not withdrawn pursuant validly withdrawn) in the Offer.
(d) Parent and Purchaser shall promptly supply to the Offer Company in writing, for inclusion in the Schedule 14D-9, all information concerning Parent and Purchaser required under applicable U.S. federal securities laws to be included in the Schedule 14D-9.
(e) The Parent shall deposit, or shall cause to be deposited, on behalf of Purchaser, with the Paying Agent, at or prior to the Acceptance Time (but in no event later than the Business Day during which the Acceptance Time occurs), all of the funds necessary to purchase any and all shares of Company Common Stock that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided. Unless this Agreement is terminated pursuant to Section 8.1, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of Purchaser shall not terminate or withdraw the Offer for a period not prior to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date without the prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% written consent of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgmentand absolute discretion. In the event this Agreement is terminated pursuant to Section 8.1, it concludes that Purchaser shall promptly (and in any event within one (1) Business Day) following such termination terminate the Merger could be consummated Offer and shall not acquire any shares of Company Common Stock pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the Acceptance Time, Purchaser shall promptly return, or cause any depositary acting on behalf of Purchaser to return, all tendered shares of Company Common Stock to the tendering stockholders.
(f) At or prior to October 6, 1997.
(b) On the date of commencement of the OfferAcceptance Time, Parent shall duly authorize, execute and Merger Sub deliver and shall file with ensure that the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the OfferRights Agent duly authorizes, which shall contain an offer to purchase executes and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments theretodelivers, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act")CVR Agreement, and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given shall substantially concurrently therewith provide a copy to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject to the provisions of terms and conditions set forth in this Agreement, as promptly as practicable but in no event later than the fifth within five business day from and including days after the date of the public announcement announcement, which shall occur on the date hereof or the following day, by Parent and the Company of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act (as hereinafter defined)) the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer, conduct and consummate the Offer as soon as practicable after the date hereof and accept for payment, and pay for, any shares of Common Stock Shares tendered and not withdrawn pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (the "Offer Conditions") (any of which may be waived in whole ---------------- or in part by Merger Sub in its sole discretion, provided that, without the express written consent of the Company, Merger Sub shall may not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement). Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right right, subject to compliance with the Exchange Act, to modify the terms of the Offer, except that, without the express written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify the conditions set forth in Exhibit AOffer Conditions, including the Minimum Condition, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, if all of the Offer Conditions are satisfied or waived, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify alter any term of the Offer in any manner materially adverse to any the holders of the Shares, provided, however, that nothing contained herein shall prohibit Sub, in its sole discretion without the consent of the Company's stockholders. The initial expiration date shall be September 15, 1997from waiving satisfaction of any condition to the Offer other than the Minimum Condition. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer for a specified period, if at the then scheduled or any extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , (AC) in the event it would otherwise be entitled to terminate extend --- the Offer at any scheduled expiration thereof due pursuant to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (aSection 9.1(d) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2D) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such any reason on one or more occasions for an aggregate period as may be requested by the Company of not to exceed ten more than 10 business days from such scheduled beyond the latest expiration datedate that would be permitted under clause (A), (B) or (C) of this sentence. Subject to the terms and conditions of the Offer and this AgreementSection 1.1(a), Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer, which shall contain an offer to -------------- purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Parent and --------------- Sub agree that the Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the "Exchange Act"), and the Offer ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to written information supplied by or on behalf of the Company in writing or any of its stockholders for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any written information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary sufficient to purchase accept for payment, and pay for, any shares of Common Stock and all Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Three Rivers Acquisition Corp)
The Offer. (a) Subject to the provisions conditions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreementhereof, Merger Sub shall, and Parent shall cause Merger Sub to, commence amend the Offer. The Offer Documents (as so amended, the “Amended Offer Documents”) and file with the Securities and Exchange Commission (the “SEC”) the Amended Offer Documents; provided, however, that the obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be is subject only to the conditions set forth in Exhibit A Annex 1 (any or all of which may (other than the Minimum Tender Condition) may, subject to the provisions hereof, be waived by Merger Sub in its sole discretionParent or Sub, provided that, without the consent subject to applicable Law). The initial expiration date of the Company, Merger Sub Offer (the “Expiration Date”) shall not waive be the Minimum Condition (as defined in Exhibit A)) and to 20th business day following the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion commencement of the Shares tendered Offer (determined pursuant to Rules 14d-1 and 14d-2 promulgated by the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderSEC). Merger Sub expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject sought to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify reduce or waive the Minimum Tender Condition (defined in Annex 1), (iv) add to the conditions set forth in Exhibit AAnnex 1, (ivv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend or modify any term other condition of the Offer in any manner adverse to any of the Company's ’s stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer in increments of not more than ten business days each, if at the scheduled expiration date of the Offer Expiration Date any of the conditions to Merger Sub's ’s obligation to purchase shares of Company Common Stock shall are not be satisfied, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation interpretation, position or position request of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order and (C) make available a subsequent offering period (within the meaning of Rule 14d-11 promulgated by the SEC). Without limiting the right of Sub to obtain any material regulatory approval applicable to extend the Offer. Merger Sub agrees that: (A) , in the event it would otherwise be entitled to terminate the Offer at that any scheduled expiration thereof due to the failure of one or more of the conditions condition set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be Annex 1 is not satisfied or waived, it shall give waived at the Company notice thereof andscheduled Expiration Date, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodSub shall, and Parent shall cause Sub to, extend the Expiration Date of the Offer in increments of five business days each until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2v) the date chosen by that is 15 days after the Companyinitial Expiration Date, which shall not be later than (w) the satisfaction or waiver of such condition, (x) December 31the determination by Parent that such condition to the Offer is not capable of being satisfied on or prior to the date specified in Section 9.01(b)(ii)(B), 1997 provided that such inability to satisfy such condition is not due to any failure of Parent or Sub to perform in any material respect any covenant or agreement of Parent or Sub contained herein, or the material breach by Parent or Sub of any representation or warranty contained herein, (y) the termination of this Agreement in accordance with its terms and (z) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood specified in Section 9.01(b)(ii)(B); provided, however, that the Company Parent and Sub shall not be entitled required to make such request so extend the Expiration Date if it is then the failure to satisfy any condition set forth in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Annex 1 was caused by or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to resulted from the failure of the Minimum Condition Company to be satisfied, it shall, at the request perform in any material respect any covenant or agreement of the CompanyCompany contained herein, extend or the Offer for such period as may be requested material breach by the Company not to exceed ten business days from such scheduled expiration dateof any representation or warranty contained herein. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay accept for all payment shares of Company Common Stock validly tendered and not withdrawn pursuant as soon as it is legally permitted to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997do so under applicable Law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ruby Merger Corp.)
The Offer. (a) Subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth seven business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence the OfferOffer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”). The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent “Offer Conditions”). The initial expiration date of the CompanyOffer shall be 12:00 midnight, Merger Sub shall not waive New York City time, on the Minimum Condition 20th business day (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as defined in Exhibit Aamended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) and to following the terms and conditions commencement (within the meaning of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion Rule 14d-2 of the Shares tendered pursuant to Exchange Act) of the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to waive any Offer Condition or modify the terms of the OfferOffer in any manner not inconsistent with this Agreement, except that, without the consent of the Company, Merger Sub shall not, and Parent shall not permit Merger Sub to, (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (iv) waive, amend or modify the Minimum Tender Condition or the Termination Condition, (v) impose conditions or requirements to the Offer (other than by increasing the cash offer price) Offer Conditions or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (vi) except as otherwise provided in this Section 1.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vii) otherwise amend, modify or supplement any term of the terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or and (iiB) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. ; provided that Merger Sub agrees that: (A) in the event it would otherwise shall not be entitled required to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until beyond the earlier Outside Date. In addition, if at the otherwise scheduled expiration date of the Offer each Offer Condition (1other than the Minimum Tender Condition) such time as such condition is, or conditions are, shall have been satisfied or waived and the Minimum Tender Condition shall not have been satisfied, Merger Sub shall have the right to (2) the date chosen and, if requested by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this AgreementMerger Sub shall, and that nothing in this Section 1.1 Parent shall modify Parent's and cause Merger Sub's right to terminate this Agreement in Sub to) extend the event that Offer for one or more consecutive increments of not more than five business days each (or for such longer period as may be agreed by the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicableCompany); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise not be entitled required to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by beyond the Company not to exceed ten business days from such scheduled expiration dateOutside Date. Subject to On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent mayOffer and, in its sole discretionany event, extend the expiration date of the Offer for a period not to exceed ten no more than three business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result the Acceptance Time. The time at which Merger Sub first accepts for payment the shares of such extension 90% or more of the Shares will be Company Common Stock tendered in the OfferOffer is referred to as the “Acceptance Time”. If, at any scheduled The Offer may not be terminated prior to its expiration date (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 this Agreement is terminated in accordance with Section 8.01 prior to October 1the Acceptance Time, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Companyand Parent shall cause Merger Sub to, extend immediately, irrevocably and unconditionally terminate the Offer and Merger Sub shall neither acquire nor pay for such number shares of days (up Company Common Stock pursuant to 20 calendar daysthe Offer. If the Offer is terminated or withdrawn by Merger Sub in accordance with the terms of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, promptly return, and Parent and Merger Sub shall cause any depository acting on behalf of Merger Sub to return, all tendered shares of Company Common Stock to the registered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as practicable on the date of commencement (within the meaning of Rule 14d-2 of the Exchange Act) of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain or incorporate by reference an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any exhibits, supplements or amendments thereto, the "“Offer Documents")”) and shall disseminate the appropriate Offer Documents to the holders of Company Common Stock. The Offer --------------- Documents Company shall comply as furnish to form in Parent and Merger Sub all material respects with information concerning the requirements of Company required by the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaws. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except with respect to any amendments after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC with respect to the Offer Documents, Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (including the proposed final version thereof), and Parent and Merger Sub shall give reasonable and good faith consideration to any comments made by the Company or its counsel.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer Offer.
(d) Parent and Merger Sub shall be entitled to perform any of its other obligations deduct and withhold from the consideration otherwise payable pursuant to the Offer to any holder of shares of Company Common Stock such amounts as Parent or Merger Sub is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local or foreign Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall be treated for all purposes of this AgreementAgreement as having been paid to the holder of Company Common Stock in respect of which such deduction or withholding was made.
Appears in 1 contract
Samples: Merger Agreement (AveXis, Inc.)
The Offer. (a) The Merger Agreement provided for the commencement of the Offer no later than April 5, 2010. Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth business day from applicable rules and including the date regulations of the public announcement of this AgreementSEC, Merger Sub shallIntersil expressly reserves the right from time to time, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions except as set forth elsewhere in Exhibit A (any of which may be waived by Merger Sub this Offer to Purchase, in its sole discretion, provided to waive any condition to the Offer, increase the Per Share Amount or to make any other changes in the terms and conditions of the Offer. However, we have agreed in the Merger Agreement that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall we will not (i) reduce waive satisfaction of the number of shares of Common Stock subject to the Offer, Minimum Condition; (ii) reduce the price per share of Common Stock waive any condition relating to be paid pursuant (a) a waiting period applicable to the Offer or the Merger under the HSR Act or any other antitrust, competition or merger control laws or related legal requirements, (except pursuant b) legal proceedings by any governmental body of competent jurisdiction that seek to Section 3.4restrain, enjoin or otherwise prohibit the making or consummation of the Offer or the Merger or (c) enactment, amendment or enforcement of any legal requirement that would result in a legal proceeding of the type described in clause (b), in each case if any such waiver would be reasonably likely to result in personal liability to any director, officer, or employee of any party to the Merger Agreement; (iii) modify decrease the Per Share Amount or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer Offer; (other than by increasing iv) decrease the cash offer pricemaximum number of Shares sought to be purchased in the Offer; (v) or impose additional conditions to the Offer; (vi) amend or modify any term of the conditions to the Offer set forth in Section 15 — “Conditions to the Offer” in any manner adverse to any the holders of Shares; or (vii) except as provided in the Company's stockholders. The initial expiration date shall be September 15Merger Agreement, 1997. Notwithstanding extend or otherwise change the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date of the Offer. There is no financing condition to the Offer. The Merger Agreement provides that unless the Merger Agreement is terminated in accordance with its terms, we (i) will extend the Offer from time to time if (A) any of the conditions condition to Merger Sub's our obligation to purchase shares of Common Stock shall Shares set forth in Section 15 — “Conditions to the Offer” is not be satisfiedsatisfied (or, until such time as such conditions are satisfied in accordance with the Merger Agreement, waived by Intersil or waived Purchaser) on or before the Expiration Date; or (iiB) extend the Offer for if any period required by any applicable law, rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof SEC Staff applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: requires such extension; (Aii) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, will extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely pursuant to the failure immediately preceding clause (i) for consecutive periods of the Minimum Condition up to be satisfied, it shall, at the request of the Company, extend the Offer five business days each (or for such period as may be requested required by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreementany applicable law, Merger Sub shallrule, and Parent shall cause Merger Sub toregulation, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offerinterpretation or position); provided, however, that notwithstanding Purchaser shall not be required to extend the -------- ------- foregoing Parent Offer beyond July 20, 2010 (the “Outside Date”); and (iii) will extend the Expiration Date for any period required by the rules and regulations of the SEC or the NASDAQ Stock Market applicable to the Offer, including in connection with an increase in the Per Share Amount. However, we will not extend the Offer if all of the conditions to the Offer are satisfied or waived and we are permitted under applicable law to accept for payment and pay for validly tendered Shares that are not properly withdrawn. In addition, the Merger Agreement provides that if the Shares we acquire in the Offer (together with Xxxxxx owned of record by Intersil, the Purchaser and their direct and indirect subsidiaries) represent less than 90% of Table of Contents the then-outstanding Shares, we may, in its our sole discretion, extend the expiration date of the Offer for a subsequent offering period not of up to exceed ten three to 20 business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of accordance with Rule 14d-11 under the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
Samples: Offer to Purchase (Intersil Corp/De)
The Offer. (a) Subject Provided that this Agreement shall not have been terminated in accordance with Section 8.01 and provided further that the Company is prepared (in accordance with Section 1.02(a)), to file with the SEC, and to disseminate to holders of shares of Company Common Stock, the Schedule 14D-9 on the same date as Merger Sub commences the Offer, subject to the provisions terms and conditions of this Agreement, as promptly as practicable (but in no event later than the fifth thirteen (13) business day from and including days after the date of the public announcement of this Agreement), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the Offermeaning of the applicable rules and regulations of the Securities and Exchange Commission (the “SEC”)) the Offer at the Offer Price. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the satisfaction or waiver of the conditions set forth in Exhibit A hereto (any the “Offer Conditions”). The initial expiration date of which may the Offer shall be waived by at the time that is one minute following 11:59 p.m., Eastern time, on the date that is 20 business days (determined using Rule 14d-1(g)(3) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”)) after the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act). Merger Sub expressly reserves the right to waive, in its sole discretion, provided in whole or in part, any Offer Condition or modify the terms of the Offer in any manner not inconsistent with this Agreement, except that, without the prior written consent of the Company, Merger Sub shall not, and Parent shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. permit Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offerto, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) waive, amend or modify the Minimum Tender Condition or add to the conditions set forth in Exhibit ATermination Condition, (iv) add to the Offer Conditions or impose any other conditions on the Offer or amend, modify or supplement any Offer Condition in any manner adverse to the holders of Company Common Stock, (v) except as otherwise provided in the remainder of this Section 1.11.01(a), terminate, or extend or otherwise amend or modify the expiration date of, the Offer, (vvi) change the form or terms of consideration payable in the Offer Offer, (other than by increasing vii) otherwise amend, modify or supplement any of the cash offer price) or (vi) amend or modify any term terms of the Offer in any manner adverse to the holders of Company Common Stock or (viii) provide any “subsequent offering period” in accordance with Rule 14d-11 of the Company's stockholders. The initial expiration date shall be September 15, 1997Exchange Act. Notwithstanding the foregoing, Merger Sub mayshall, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)and Parent shall cause Merger Sub to, (iA) extend the OfferOffer for one or more consecutive increments of not more than ten business days each (or for such longer period as may be agreed to by Parent and the Company), if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions (other than the Minimum Tender Condition) shall not be satisfiedhave been satisfied or waived, until such time as such conditions are shall have been satisfied or waived or (iiirrespective of whether the Minimum Tender Condition has been satisfied) and (B) extend the Offer for any the minimum period required by any rule, regulation, regulation or interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval The Nasdaq Global Market (“Nasdaq”) applicable to the Offer. ; provided that Merger Sub agrees that: (A) in the event it would otherwise shall not be entitled required to terminate extend the Offer beyond the Outside Date. In addition, if at any the otherwise scheduled expiration thereof due to the failure of one or more date of the conditions set forth in Offer, each Offer Condition (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Tender Condition) or (g) of Exhibit A to be shall have been satisfied or waivedwaived and the Minimum Tender Condition shall not have been satisfied, it shall give the Company notice thereof and, at the request of Merger Sub may elect to (and if so requested by the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodMerger Sub shall, and Parent shall cause Merger Sub to), extend the Offer until for one or more consecutive increments of such duration as requested by the earlier of Company (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen if not so requested by the Company, which shall as determined by Parent), but not more than ten business days each (or for such longer period as may be later than (x) December 31, 1997 or (y) agreed to by Parent and the date on which the Company reasonably believes all such conditions will be satisfied (it being understood Company); provided that the Company shall not be entitled to make such request if it is then in breach of this AgreementMerger Sub to, and that nothing in this Section 1.1 Parent shall modify Parent's and Merger Sub's right not be required to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and cause Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Companyto, extend the Offer for such period as may pursuant to this sentence on more than five occasions; provided, further, that Merger Sub shall not, and shall not be requested by required to extend the Company not to exceed ten business days from such scheduled expiration dateOffer beyond the Outside Date. Subject to On the terms and subject only to the conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Company Common Stock validly tendered and not properly withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately as promptly as practicable after the expiration of the Offer (which shall be the next business day after the expiration of the Offer absent extenuating circumstances) and, in any event, no more than three business days after the expiration of the Offer; provided, however, that notwithstanding . The time at which Merger Sub first irrevocably accepts for purchase the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date shares of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be Company Common Stock tendered in the Offer. If, at any scheduled Offer is referred to as the “Offer Closing Time.” The Offer may not be terminated or withdrawn prior to its expiration date prior to October 1(as such expiration date may be extended and re-extended in accordance with this Section 1.01(a)), 1997unless this Agreement is validly terminated in accordance with Section 8.01. If this Agreement is validly terminated in accordance with Section 8.01, there Merger Sub shall have been tenderedpromptly terminate the Offer and return, and not withdrawn, fewer than 90% shall cause any depository acting on behalf of the Shares, then Merger Sub shallto return, at all tendered shares of Company Common Stock to the request of the Company, extend the Offer for such number of days (up to 20 calendar daysregistered holders thereof. Nothing contained in this Section 1.01(a) as the Company may request. No such request shall be made by the Company if, affect any termination rights set forth in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Section 8.01.
(b) On As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain include an offer to purchase and a related letter of transmittal and summary advertisement containing the terms set forth in this Agreement and Exhibit A hereto (such Schedule 14D-1 TO, as amended from time to time, and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) disseminate the Offer Documents on the date first published, sent or given to the Company's stockholders, holders of Company Common Stock as and to the extent required by applicable U.S. federal securities Law. The Company shall not contain any untrue statement of a material fact or omit furnish to state any material fact Parent and Merger Sub all information concerning the Company required by the Exchange Act to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and to correct any material omissions therefrom, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Documents, as so amended or supplemented supplemented, to be filed with the SEC and to be disseminated to the Company's stockholdersholders of Company Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanyLaw. Parent and Merger Sub agree to shall provide the Company and its counsel with copies of any comments written comments, and shall inform the Company and its counsel of any oral comments, that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Except from and after an Adverse Recommendation Change, prior to the filing of the Offer Documents (including any amendment or supplement thereto) with the SEC or the dissemination thereof to the holders of Company Common Stock, or responding to any comments of the SEC or its staff with respect to the Offer Documents, Parent and Merger Sub shall (x) provide the Company and its counsel a reasonable opportunity to review and comment on such Offer Documents or response (it being understood that the Company and its counsel shall provide any comments thereon as soon as reasonably practicable) and (y) give reasonable and good faith consideration to any comments made by the Company or its counsel. Parent and Merger Sub shall respond promptly to any comments of the SEC or its staff with respect to the Offer Documents.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(d) If, between the date of this Agreement and the Offer and to perform Closing Time, the outstanding shares of Company Common Stock are changed into a different number or class of shares by reason of any stock split, division or subdivision of its shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other obligations pursuant to this Agreementsimilar transaction, then the Offer Price shall be appropriately adjusted.
Appears in 1 contract
Samples: Merger Agreement (Dermira, Inc.)
The Offer. (a) Subject to Provided that this Agreement shall not have been validly terminated in accordance with its terms, as promptly as practicable, but no later than five (5) Business Days, after the provisions date of this Agreement, as promptly as practicable but in no event later than Purchaser shall commence (within the fifth business day from and including meaning of Rule 14d-2 promulgated under the date of the public announcement of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence Exchange Act) the Offer. The obligation obligations of Merger Sub to, and of Parent Purchaser to cause Merger Sub to, commence the Offer and accept for payment, and pay for, any shares of Common Stock Units validly tendered and not properly withdrawn pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A Annex I (the “Offer Conditions”).
(b) The initial scheduled expiration time of the Offer shall be midnight, New York City time, on the 20th Business Day (calculated as set forth in Rule 14d-1(g)(3) promulgated under the Exchange Act) following the commencement of the Offer (the “Initial Expiration Date”). Purchaser shall not terminate or withdraw the Offer other than in connection with the termination of this Agreement in accordance with its terms. In the event that this Agreement is validly terminated pursuant to its terms, Purchaser shall promptly withdraw and terminate the Offer (and promptly after any termination or withdrawal of which the Offer, Purchaser shall return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Units to the Record Holders thereof, in accordance with the terms of the Offer and applicable Law). Purchaser may be waived by Merger Sub waive any condition to the Offer, in its sole discretionwhole or in part, or modify the terms of the Offer; provided, however, that except as otherwise expressly provided thatin this Agreement, without the consent of the Company, Merger Sub shall not waive GP Board (acting upon the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion recommendation of the Shares tendered pursuant to the OfferConflicts Committee), but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Common Stock Units subject to the Offer, (ii) reduce the price per share Offer Price or change the form of Common Stock to be paid pursuant to consideration payable in the Offer (except pursuant to Section 3.4)Offer, (iii) modify waive or add to amend the conditions set forth in Exhibit AMinimum Tender Condition, (iv) except as otherwise provided in the remainder of this Section 1.12.1(c) and Section 2.1(d), extend the Offer, (v) change the form of consideration payable in add to the Offer (Conditions or impose any other than by increasing conditions to the cash offer price) Offer or (vi) amend otherwise amend, modify or modify any term supplement the terms of the Offer in any manner adverse to in any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject material respect to the Company's right Unaffiliated Unitholders.
(c) Notwithstanding anything to terminate the contrary in this Agreement pursuant to Section 8.1(b)(ii)Agreement, (i) extend the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Purchaser shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any the minimum period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2ii) if, on the date chosen by the CompanyInitial Expiration Date, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(aConditions shall not have been satisfied (or waived by Purchaser if permitted hereunder); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it Purchaser shall, at upon the request of the CompanyPartnership’s request, extend the Offer for a period of up to ten (10) days (or for such longer period as may be requested mutually agreed by the Company not to exceed ten business days from such scheduled expiration date. Subject to GP Board (acting upon the terms and conditions recommendation of the Offer Conflicts Committee) and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the OfferPurchaser); provided, however, that notwithstanding Purchaser shall not be required to extend the -------- ------- foregoing Parent Offer beyond the First Outside Date.
(d) Purchaser may, in its sole discretion, extend the expiration Offer for one or more successive periods of up to ten (10) Business Days each (or for such longer period as may be mutually agreed by the GP Board (acting upon the recommendation of the Conflicts Committee) and Purchaser) if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any of the Offer for a period Conditions shall not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tenderedsatisfied (or waived by Purchaser if permitted hereunder), and until the termination of this Agreement pursuant to Section 7.1. Purchaser shall not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer if all of the Offer Conditions are satisfied (or waived by Purchaser if permitted hereunder) and Purchaser is permitted under applicable Law to accept for payment and pay for tendered Units.
(e) On the terms set forth in this Agreement and subject only to the Offer Conditions, Purchaser shall, promptly after the expiration of the Offer, as required by Rule 14e-1 of the Exchange Act, accept for payment and pay for all Units validly tendered and not properly withdrawn pursuant to the Offer (the time of such number of days (up to 20 calendar days) as acceptance, the Company may request“Acceptance Time”). No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on At or prior to October 6the Acceptance Time, 1997Purchaser shall deposit with the Depositary cash in an amount sufficient to pay the aggregate Offer Price for all Units that Purchaser has become obligated to purchase pursuant to the Offer.
(bf) On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"”), and shall, to the ------------ rules and regulations promulgated thereunder and extent required by applicable U.S. federal securities Laws, mail the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light holders of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub Units promptly after filing the Schedule TO with respect the SEC. Purchaser shall be entitled to information supplied by include the Company in writing for inclusion Conflicts Committee Recommendation and the GP Board Recommendation in the Offer Documents. Each Purchaser shall use its reasonable best efforts to respond as promptly as practicable to any comments of Parentthe SEC or its staff with respect to the Offer Documents, Merger Sub and each of Purchaser and the Company agrees Partnership shall promptly to correct any information provided by it for use in the Offer Documents Documents, if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to Purchaser shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersholders of the Units, in each case as and to the extent required by applicable Federal federal securities lawsLaws. The Company Partnership, the Conflicts Committee and its their respective counsel shall be given a reasonable time and opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing such documents with the SEC or dissemination of such documents to stockholders holders of the Company. Parent Units, and Merger Sub agree to provide the Company Purchaser and its counsel shall consider in good faith any comments Parentthereto made by the Partnership, Merger Sub the Conflicts Committee or their respective counsel. Purchaser shall (i) provide the Partnership, the Conflicts Committee and their respective counsel with any written comments or requests (and inform them of any oral comments or requests) for additional information that Purchaser or any of its Representatives may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
comments or requests, (cii) Parent shall contribute 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 provide to the Offer Partnership, the Conflicts Committee and their respective counsel reasonable time and opportunity to perform review and comment upon any of written responses thereto prior to responding to such comments or requests, (iii) consider in good faith any comments thereto made by the Partnership, the Conflicts Committee or their respective counsel, and (iv) consult (to the extent practicable) with the Partnership, the Conflicts Committee and their respective counsel prior to making any material oral responses or engaging in any material discussions with the SEC. Purchaser shall use reasonable best efforts to permit the Partnership, the Conflicts Committee and their respective counsel to participate with Purchaser or its other obligations pursuant to this AgreementRepresentatives in any material discussions or meetings with the SEC.
Appears in 1 contract
Samples: Transaction Agreement (World Point Terminals, Inc.)
The Offer. (a) Subject to the provisions of this Agreement, as As promptly as practicable (but in no event later than the fifth five business day from and including days after the date of the initial public announcement of the execution and delivery of this Agreement), Merger Sub Newco shall, and Parent shall cause Merger Sub Newco to, commence (within the meaning of Rule 14d-2 under the United States Securities Exchange Act of 1934, as amended (collectively with the rules and regulations promulgated thereunder, the "Exchange Act")), the Offer and, subject to the conditions of the Offer, shall use commercially reasonable efforts to consummate the Offer as promptly as permitted by law. The obligation of Merger Sub toParent and Newco to consummate the Offer, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Common Stock Shares tendered pursuant to the Offer (i) shall be subject only to the condition that the number of Shares validly tendered and not withdrawn prior to the expiration date of the Offer (the "Expiration Date"), together with all Shares beneficially owned by Parent or any of its subsidiaries on such date (the "Parent Owned Shares"), shall be not less than 75% of the Shares then outstanding, calculated on a fully diluted basis (the "Minimum Condition"), and (ii) shall be subject to the other conditions set forth in Exhibit A Annex A.
(b) Parent and Newco expressly reserve the right to increase the price per Share payable in the Offer or to make any of which may be waived by Merger Sub other changes in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by the Offer; provided, however, that neither Parent nor Newco will, without the right to purchase all or any portion prior written consent of Company, decrease the Shares tendered pursuant to consideration payable in the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock impose any additional conditions to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify alter any other term of the Offer in any manner materially adverse to the holders of Shares. Company agrees that no Shares held by Company or any of its subsidiaries will be tendered pursuant to the Offer. Notwithstanding any other provision of this Agreement, the conditions of the Offer are for the sole benefit of Parent and Newco and may be asserted by Parent and Newco regardless of the circumstances giving rise to any such conditions or may be waived by Parent and Newco in whole at any time or in part from time to time in their sole and absolute discretion (except that, without Company's stockholders. The initial expiration date shall be September 15consent, 1997. Notwithstanding Newco may not reduce the foregoing, Merger Sub may, without the consent percentage amount of the Company, but subject Minimum Condition to less than majority).
(c) As soon as practicable on the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend date of commencement of the Offer, if at Parent and Newco shall file with the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, Offer which shall will contain an the offer to purchase and a form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, collectively referred to herein as the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Newco shall give Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing being filed with the SEC or dissemination disseminated to stockholders the shareholders of the Company. Parent and Merger Sub agree to provide the Newco will furnish Company and its counsel in writing any comments that Parent, Merger Sub Newco or their counsel may receive from the SEC or its staff with respect to the Offer Documents Documents, promptly after the receipt of such comments, and the proposed responses thereto. Each of Parent and Newco (and Company with respect to information supplied by it specifically for use in the Offer Documents) agrees to promptly correct the Offer Documents if and to the extent that they shall have become false or misleading in any material respect, and Parent and Newco shall take all steps reasonably necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to Company's shareholders, in each case as and to the extent required by applicable United States federal securities laws.
(cd) Parent shall contribute provide or cause to Merger Sub be provided to Newco on a timely basis the funds necessary sufficient to purchase accept for payment, and Parent shall cause Newco to pay for, any shares of Common Stock and all Shares that Merger Sub Newco becomes obligated to purchase accept for payment pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
Samples: Amalgamation Agreement (Exel LTD)
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have been terminated in accordance with Section 9.1 and no event later than the fifth business day from set forth in paragraphs (a) through (h) in Annex A hereto shall have occurred and including the date of the public announcement of this Agreementbe continuing, Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer as promptly as practicable after the date hereof, and in any event no later than January 18, 2008. The Offer Price shall be net to the seller of shares of Common Stock in the Offer in cash, without interest, subject to reduction for applicable amounts withheld pursuant to paragraph (f) below. The Company agrees that no shares of Common Stock held by the Company or any of its Subsidiaries will be tendered pursuant to the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Common Stock tendered pursuant to the Offer shall be subject only to the those conditions set forth in Exhibit Annex A hereto (any of which as they may be waived by amended in accordance with this Agreement, the “Offer Conditions”).
(b) Merger Sub expressly reserves the right, in its sole discretion, to waive any of the Offer Conditions and make any other changes in the terms and conditions of the Offer, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to decrease the Offer (except pursuant to Section 3.4), (iii) modify Price or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer, (ii) decrease the number of shares of Common Stock sought to be purchased in the Offer, (iii) amend the number of shares of Common Stock required to satisfy the Minimum Condition except in accordance with Section 7.2(e) hereof or waive satisfaction of the Minimum Condition, (iv) impose additional conditions on the Offer (other than by increasing the cash offer price) or (viv) amend or modify any other term of the Offer in any manner adverse to in any of the Company's stockholders. The initial expiration date shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject material respect to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer, if at the scheduled expiration date holders of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Stock.
(bc) On the date of commencement of the Offer, Parent and Merger Sub shall (i) file or cause to be filed with the SEC a combined Schedule 13E-3 and Tender Offer Statement on Schedule 14D-1 TO filed under cover of Schedule TO (together with respect to all amendments and supplements thereto, the Offer, which shall contain an “Schedule TO”) and related offer to purchase and a related purchase, letter of transmittal and summary advertisement (such Schedule 14D-1 and the other ancillary Offer documents and exhibits included therein instruments pursuant to which the Offer will be mademade (collectively, together with and including any supplements or amendments thereto, the "“Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended ”) and (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and ii) cause the Offer Documents on the date first published, sent or given to be disseminated to the Company's stockholders, shall not contain any untrue statement holders of a material fact or omit Common Stock as and to state any material fact the extent required by applicable Law. The Company agrees to furnish to Parent and Merger Sub all information concerning the Company required by applicable Law to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion set forth in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information it shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule TO, as so amended corrected or supplemented supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to the Company's stockholdersholders of Common Stock, in each case as and to the extent required by applicable Federal securities laws. The Parent will provide the Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents Documents, and all any amendments and supplements thereto prior to their filing thereto, before they are filed with the SEC or dissemination disseminated to stockholders the holders of the CompanyCommon Stock. Parent and Merger Sub agree shall respond as promptly as reasonably practicable to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive received from the SEC or its staff with respect to the Offer Documents promptly after the receipt and provide copies of such commentscomments to the Company promptly upon receipt and copies of proposed responses to the Company a reasonable time prior to filing or disseminating to allow meaningful comment.
(cd) Parent The Offer shall contribute remain open until that date that is twenty (20) Business Days following (and including the day of) the commencement of the Offer (such date, or such subsequent date to which the expiration of the Offer is extended pursuant to and in accordance with the terms of this Agreement, the “Expiration Date”). Unless this Agreement has been terminated in accordance with Section 9.1, if at any scheduled Expiration Date, any of the Offer Conditions shall not have been satisfied or earlier waived by Merger Sub, or, even if all of the Offer Conditions shall have been satisfied or waived, if the Financing Documentation Deadline shall not have occurred, then Merger Sub shall extend the Offer and the Expiration Date on one or more occasions for periods of up to twenty (20) Business Days as Merger Sub shall determine; provided, however, that (i) if all of the Offer Conditions have been satisfied or waived by Merger Sub for at least ten (10) Business Days other than the Minimum Condition, then Merger Sub shall not be required to extend the Expiration Date beyond the four (4) month anniversary of the day of the commencement of the Offer and (ii) in no event shall Merger Sub be required to extend the Offer or the Expiration Date beyond the Outside Date. Merger Sub may, in its sole discretion, elect to provide a timely basis subsequent offering period for the funds necessary Offer in accordance with Rule 14d-11 promulgated under the Exchange Act (“Subsequent Offering Period”) if as of the commencement of the Subsequent Offering Period, there shall not have been validly tendered and not withdrawn pursuant to purchase any the Offer that number of shares of Common Stock that necessary to permit the Merger to be effected without a meeting of stockholders of the Company, in accordance with Section 253 of the Act. Nothing contained in this Section 1.1(d) shall be construed to affect any termination rights set forth in Article IX hereof.
(e) Subject to the terms of the Offer and this Agreement and the satisfaction or waiver by Merger Sub becomes obligated to purchase of the Offer Conditions as of the Expiration Date, following the occurrence of the Financing Documentation Deadline and in accordance with Rule 14d-11, Merger Sub shall (i) accept for payment (“Acceptance” and the time and date of such Acceptance, the “Acceptance Date”) and pay for shares of Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Date and (ii) as promptly as practicable, accept for payment and pay for all shares of Common Stock validly tendered into any Subsequent Offering Period.
(f) Merger Sub shall be entitled to perform any of its other obligations deduct and withhold from the consideration otherwise payable pursuant to this Agreementthe Offer to any holder of shares of Common Stock such amounts as Merger Sub is required to deduct and withhold with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Tax authority by Merger Sub, such withheld amounts shall be treated for all purposes of the Agreement as having been paid to the holder of the shares of Common Stock in respect of which such deduction and withholding were made by Merger Sub.
(g) Merger Sub shall not terminate the Offer prior to any next scheduled Expiration Date without the prior written consent of the Company except in the event the Agreement is terminated in accordance with Section 9.1.
Appears in 1 contract
The Offer. (a) Subject to the provisions of Provided that this Agreement, as promptly as practicable but Agreement shall not have been terminated in accordance with Article VIII and no event later shall have occurred and be continuing that, had the Offer been commenced, would give rise to a right to terminate the Offer pursuant to any of the conditions set forth in Exhibit A hereto (the “Offer Conditions”) (other than the fifth business day from Minimum Condition and including the date of the public announcement of this Agreementcondition (b) on Exhibit A hereto), Merger Sub shall, and Parent shall cause Merger Sub to, use commercially reasonable efforts to commence (within the Offer. The obligation meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) not later than three (3) Business Days following the date hereof (and in any event Merger Sub shall, and Parent shall cause Merger Sub to, commence not later than five (5) Business Days following the date hereof), an offer to purchase all outstanding Common Shares at the Offer Price. The obligations of Merger Sub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived satisfaction or waiver by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) Offer Conditions and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderhereof. Merger Sub expressly reserves the right right, in its sole discretion, to waive any Offer Condition, in whole or in part, at any time or from time to time, or to modify the terms or conditions of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) reduce the cash offer pricenumber of Common Shares subject to the Offer, (iv) waive or change the Minimum Condition (as defined in Exhibit A), (v) add to the Offer Conditions, (vi) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (vivii) amend modify any Offer Condition or modify any term of the Offer set forth in any this Agreement in a manner adverse to any the holders of Common Shares. Either Parent or Merger Sub may, in its sole and absolute discretion and without the consent of the Company's stockholders. The initial expiration date , increase the Offer Price, in which case the Offer shall be September 15, 1997. Notwithstanding the foregoing, Merger Sub mayextended, without the consent of the Company, but subject to as required by applicable Law. The Company agrees that no Common Shares held by the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), Company or any of its Subsidiaries will be tendered in the Offer.
(ib) extend The Offer shall expire on the date that is twenty (20) Business Days (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer, if at the scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock shall not except as may otherwise be satisfied, until such time as such conditions are satisfied or waived or (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the OfferLaw; provided, however, that notwithstanding if at any scheduled expiration date of the -------- ------- foregoing Offer, all of the Offer Conditions shall have been satisfied or waived other than the Minimum Condition, Merger Sub may, or if requested by the Company, Merger Sub shall, extend the Offer to the earliest to occur of (i) a date that is no more than fifteen (15) Business Days after such previously scheduled expiration date (the length of each such period to be determined by Merger Sub in its sole discretion), or (ii) the later of (A) three (3) months from the date hereof or (B) such other date on or prior to the Merger Outside Date as Parent may specify in its sole discretion upon delivery of written notice to the Company (the “Offer Outside Date”); provided further, that Merger Sub may, in its sole discretion, (A) extend the Offer for a period of no more than 15 (fifteen) Business Days in the aggregate, if at any time at or prior to any scheduled expiration date of the Offer, less than 78.75% of the number of Common Shares then outstanding less the number of Support Agreement Shares (if any) held in a voting trust in accordance with a Support Agreement, have been validly tendered and not withdrawn and/or (B) provide a subsequent offering period (a “Subsequent Offering Period”) after the expiration of the Offer, in accordance with Rule 14d-11 under the Exchange Act. If (1) as of any scheduled expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more (x) all of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there Offer Conditions shall not have been tenderedsatisfied or waived, and not withdrawn, fewer than 90% (y) no further extensions or re-extensions of the Shares, then Offer are required pursuant to this Section 1.1(b) and (z) Merger Sub shall, at the request shall elect by delivery of a written notice to the Company, extend or (2) all of the Offer for such number of days (up to 20 calendar days) Conditions shall not have been satisfied or waived as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the OfferOffer Outside Date, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholdersthen, in each case of clauses (1) and (2), the Offer shall terminate. The termination of the Offer pursuant to the immediately preceding sentence is referred to herein as the “Offer Termination.” If the Offer is terminated or withdrawn by Merger Sub, or this 2 Agreement is terminated by Parent in accordance with Section 8.1, Merger Sub shall promptly return, and shall cause any depository acting on behalf of Merger Sub to return, all tendered Common Shares to the registered holders thereof to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders terms of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such commentsOffer.
(c) Parent shall contribute Subject to the terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub on a timely basis the funds necessary to purchase any shares of will accept for payment and pay for all Common Stock that Merger Sub becomes obligated to purchase Shares validly tendered and not validly withdrawn pursuant to the Offer and as soon as practicable after the expiration date thereof (as the same may be extended or required to perform be extended) or (in the case of any of its other obligations pursuant to this AgreementCommon Shares tendered during any Subsequent Offering Period) as soon as practicable following the valid tender thereof.
Appears in 1 contract
Samples: Merger Agreement (CKX, Inc.)
The Offer. (a) Subject to Provided that this Agreement shall not have been terminated in accordance with Article X hereof and so long as none of the provisions of this Agreementevents set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred and are continuing (unless such event shall have been waived by Parent or Merger Sub), as promptly as practicable practicable, but in no event later than the fifth business day from and including after the date of the public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer at the Offer Price. The initial expiration date for the Offer shall be the twentieth business day following the commencement of the Offer. The obligation obligations of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in its their sole discretion; provided, provided thathowever, without the consent of the Company, that Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) without the prior written consent of the Company. The Tender Offer Conditions are for the sole benefit of Parent and to the terms and conditions of this Agreement. Merger Sub and may at any time transfer or assign to one or more corporations directly or indirectly wholly owned be asserted by Parent the right to purchase all or any portion and Merger Sub regardless of the Shares tendered pursuant circumstances giving rise to the Offerany such Tender Offer Conditions or, but no such assignment shall relieve except as expressly set forth herein, may be waived by Parent or and Merger Sub of its obligations hereunderin whole or in part. Parent and Merger Sub expressly reserves reserve the right to modify the terms of the Offer; provided however, except that, that without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock subject to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit ATender Offer Conditions, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (viv) amend or modify make any term other change in the terms of the Offer in any manner which is materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Common Stock. Notwithstanding the foregoingforegoing sentence, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at the then scheduled expiration date of the Offer any of the conditions to Merger Sub's obligation obligations to purchase the shares of Common Stock shall have not been satisfied or waived, until the third business day after the day Merger Sub reasonably believes to be the earliest date on which such conditions will be satisfied, until such (B) extend the Offer from time as such conditions are satisfied or waived or to time 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 (iiC) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") SEC or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: 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 event it would otherwise be entitled contrary in this Agreement, Parent and Merger Sub agree that if immediately prior to terminate the Offer at any scheduled expiration thereof due to the failure of one or more date of the Offer, the Regulatory Conditions (as defined in Annex A) shall not have been satisfied, but at such scheduled expiration date each of the other conditions set forth in Annex A (other than the first sentence of the introductory paragraph or paragraphs (aMinimum Condition) or (g) of Exhibit A to shall then be satisfied or waived, it shall give the Company notice thereof andsatisfied, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, Merger Sub shall extend the Offer until from time to time, subject to the earlier right of (1) such time as such condition isParent, Merger Sub or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject pursuant to the terms hereof. Upon the terms and subject to the conditions of the Offer and this AgreementOffer, Merger Sub shall, and Parent shall cause Merger Sub to, pay for promptly purchase all shares of Common Stock which are validly tendered on or prior to the expiration of the Offer and not withdrawn pursuant withdrawn. Parent shall provide, or cause to the Offer be provided, to Merger Sub on a timely basis all funds necessary to accept for payment, and pay for, all shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On As soon as reasonably practicable on the date of commencement of the OfferOffer is commenced, Parent and Merger Sub shall file file, and Parent shall cause Merger Sub to file, with the SEC and disseminate to the holders of shares of Common Stock to the extent required by law a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto, the "Schedule 14D-1") with respect to the Offer, which . The Schedule 14D-1 shall contain (included as an exhibit) or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and a form of the related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents "Letter of Transmittal"), as well as all other information and exhibits included therein pursuant required by law (which Schedule 14D-1, Offer to which the Offer will be madePurchase, Letter of Transmittal and such other information and exhibits, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents Company and its counsel shall be given the opportunity to review and comment upon the Schedule 14D-1 and any amendments thereto prior to their filing with the SEC. The Schedule 14D-1 will comply as to form in all material respects with the requirements provisions of applicable federal securities laws and, on the Securities Exchange Act of 1934, as amended (date filed with the "Exchange Act"), SEC and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were are made, not misleading, except that no representation is made by Parent or Merger Sub with respect to any information supplied by the Company expressly in writing for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the CompanySchedule 14D-1. Parent and Merger Sub agree to promptly provide the Company and its counsel with (i) any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly Schedule 14D-1 after the receipt of such comments.
comments and (cii) Parent shall contribute to copies of any responses by Merger Sub on a timely basis or Parent to such comments. Each of Parent and Merger Sub agrees to promptly correct any information provided by it for use in the funds Offer Documents that shall be, or have become, false or misleading in any material respect, and Parent and Merger Sub further agree to take all steps necessary to purchase any cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to holders of Common Stock, in each case as and to the extent required by applicable federal securities laws. In the event that the Offer is terminated or withdrawn by Merger Sub, Parent and Merger Sub shall cause all of the tendered shares of Common Stock that Merger Sub becomes obligated to purchase pursuant be returned to the Offer and registered holders of the shares of Common Stock represented by the certificate or certificates surrendered to perform any of its other obligations pursuant to this Agreementthe Paying Agent.
Appears in 1 contract
Samples: Merger Agreement (United Pan Europe Communications Nv)
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable practicable, but in no event later than the fifth five business day from and including days after the date of the public announcement of this Agreement, Merger Sub the Subsidiary shall, and the Parent shall cause Merger Sub the Subsidiary to, commence the Offer. The obligation of Merger Sub the Subsidiary to, and of the Parent to cause Merger Sub the Subsidiary to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A 1.1 (any and all of which may may, except as limited by the following sentence, be waived in whole or in part by Merger Sub the Subsidiary in its sole discretion), provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub The Subsidiary expressly reserves the right to modify the terms and conditions of the Offer, except that, without the prior written consent of the CompanyCompany or as expressly permitted by this Agreement, Merger Sub the Subsidiary shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Per Share Amount, (iii) modify or add to the conditions set forth in Exhibit A1.1, (iv) allow the Offer to expire prior to September 19, 1997; (v) except as provided in the remainder of this Section 1.1following sentence, extend the term of the Offer, (vvi) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vivii) amend or modify make any term of the Offer in any manner other modifications that are otherwise materially adverse to any holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub the Subsidiary may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at term of the Offer on one or more occasions beyond any scheduled expiration date of the Offer if, at any such scheduled expiration date, any of the conditions to Merger Subthe Subsidiary's obligation to purchase accept for payment, and pay for, shares of Company Common Stock tendered pursuant to the Offer shall not be satisfied, until such time as such conditions are have been satisfied or waived or (iiprovided, however, that the Subsidiary may not extend the Offer under this subsection (A) for a total of more than 60 days from the commencement of the Offer), (B) extend the Offer for a period not to exceed 10 business days, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer, if, immediately prior to that expiration date (as it may be extended), the Company Shares validly tendered and not withdrawn pursuant to the Offer equal more than 75% but less than 90% of the outstanding Company Shares, and (C) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order any other applicable law.
(b) The Per Share Amount shall, subject to obtain any material regulatory approval applicable withholding of taxes, be net to the Offer. Merger Sub agrees that: (A) seller in cash, upon the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due terms and subject to the failure of one or more conditions of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub the Subsidiary shall, and the Parent shall cause Merger Sub the Subsidiary to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately promptly after the expiration of the Offer; provided. The Parent shall provide or cause to be provided to the Subsidiary on a timely basis the funds necessary to pay for any shares of Company Common Stock that the Subsidiary becomes obligated to accept for payment, howeverand pay for, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of pursuant to the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997this Agreement.
(bc) On the date of commencement of the Offer, the Parent and Merger Sub the Subsidiary shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.be
Appears in 1 contract
Samples: Merger Agreement (Talbert Medical Management Holdings Corp)
The Offer. (a) Subject to the provisions conditions of this AgreementAgreement and provided that this Agreement shall not have been terminated in accordance with its terms pursuant to Article VII hereof and none of the events set forth in paragraphs (a) through (f) of Exhibit A hereto shall have occurred or be existing, as promptly as reasonably practicable but in no event later than the fifth ten business day from and including days after the date of the public announcement of this Agreement, Parent and Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub to, and of Parent to cause Merger Sub to, commence the Offer within the meaning of the applicable rules and regulations of the Securities and Exchange Commission (the "SEC"). The obligations of Parent and Merger Sub to accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be are subject only to the conditions set forth in Exhibit A A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (the initial "Expiration Date," and any expiration time and date established pursuant to an authorized extension of which may the Offer as so extended, shall also be waived by defined herein as an "Expiration Date"). Parent and Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent expressly reserve the right to purchase all or waive any portion of the Shares tendered pursuant condition to the Offer, but no such assignment shall relieve Parent Offer or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Company Common Stock subject to the Offer, (ii) reduce the price per share of Common Stock Offer Price to be paid pursuant to the Offer (except pursuant to Section 3.4)Offer, (iii) modify change or waive the Minimum Tender Condition (as defined in Exhibit A), add to the conditions set forth in Exhibit AAor modify any condition set forth in Exhibit A in any manner adverse to the holders of Company Common Stock, (iv) except as provided below in the remainder of this Section 1.11.01(a), extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) otherwise amend or modify any term of the Offer in any manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Company Common Stock. Notwithstanding the foregoing, Merger Sub maymay (but shall not be obligated to), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii)Company and in its sole and absolute discretion, (iA) from time to time extend the OfferOffer if, if at the scheduled expiration date of the Offer Expiration Date, any of the conditions to Merger Sub's obligation to purchase shares of Common Stock the Offer shall not be satisfied, have been satisfied or waived until such time as such conditions are satisfied or waived or to the extent permitted by this Agreement; (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval SEC applicable to the Offer. Merger Sub agrees that: ; or (AC) in the event it would otherwise be entitled to terminate extend the Offer for a "subsequent offering period" (as provided by Rule 14d-11 under the Exchange Act) for a period of three to twenty business days in order to acquire at any scheduled expiration thereof due least 90% of the outstanding shares of the Company Common Stock. On the terms and subject to the failure of one or more of conditions to the conditions Offer that are set forth in this Agreement, promptly after the first sentence of the introductory paragraph Expiration Date, either Parent or paragraphs (a) or (g) of Exhibit A to be satisfied or waivedMerger Sub shall accept for payment and purchase, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) promptly as practicable after the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof Parent or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of (as the case may be) first accepts shares for payment pursuant to the Offer in accordance with (the terms of this Section 1.1(a"Acceptance Date"); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Parent and Merger Sub becomes obligated are permitted to purchase pursuant to the Offer immediately after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer accept and pay for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997under applicable law.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC SEC, and cause to be disseminated to the Company's stockholders, as and to the extent required by applicable federal securities laws, a Tender Offer Statement on Schedule 14D-1 TO with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees shall promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have originally been or shall become false or misleading in any material respectrespect (whether by virtue of a material misstatement, material omission or otherwise), and each of Parent and Merger Sub further agrees to shall take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and the Offer Documents as so amended or supplemented to be disseminated to the Company's stockholders, in each case as and to the extent required by or deemed advisable under applicable Federal federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree shall provide to provide the Company and its counsel in writing any written comments (and orally, any oral comments), Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments and shall consult with the Company and its counsel prior to responding to any such comments.
(c) Parent shall contribute provide or cause to be provided to Merger Sub on a timely basis the funds necessary to purchase any shares of Company Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this AgreementOffer.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 10.1 and so long as promptly as practicable but none of the events or circumstances set forth in no event Annex A hereto shall have occurred and be continuing, not later than the fifth seventh business day from and including the date of the public announcement of the execution of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub toSubsidiary to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, commence as amended (the Offer"Exchange Act")), the Offer at a price equal to the Common Stock Price for each share of Company Common Stock. The obligation of Merger Sub toSubsidiary to consummate the Offer, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Company Common Stock tendered pursuant to the Offer shall be subject only solely to the those conditions set forth in Exhibit Annex A. It is agreed that the conditions to the Offer set forth on Annex A (any are for the benefit of which Subsidiary and may be waived asserted by Merger Sub Subsidiary regardless of the circumstances giving rise to any such condition, and Subsidiary expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the prior written consent of the Company, Merger Sub Subsidiary shall not waive the Minimum Condition (as defined in Exhibit Annex A) or the condition set forth in paragraph (f) of Annex A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act).
(b) Subsidiary expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offerprovided, except that, that without the prior written consent of the Company, Merger Sub shall not no modification or change may be made which (i) reduce decreases the number of shares of Common Stock subject to the OfferPrice (except as permitted by this Agreement), (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) changes the cash offer priceMinimum Condition, (iv) limits the number of shares of Company Common Stock sought pursuant to the Offer, (v) changes the material conditions to the Offer in a manner adverse to the Company or its stockholders or option holders, or (vi) amend or modify any term of imposes additional material conditions to the Offer in any manner adverse to any of the Company's stockholders. The initial expiration date shall be September 15, 1997Offer. Notwithstanding the foregoing, Merger Sub maySubsidiary may (but shall not be required under this Agreement or otherwise to), without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the OfferOffer on one or more occasions for such period as may be determined by Subsidiary in its sole discretion (each such extension period not to exceed 20 business days at a time), if at the then-scheduled expiration date of the Offer any of the conditions to Merger SubSubsidiary's obligation obligations to purchase accept for payment and pay for shares of Company Common Stock shall not be satisfied, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: , and (Aiii) in the event it would otherwise be entitled to terminate extend the Offer at any scheduled expiration thereof due to the failure of on one or more occasions for an aggregate period of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, not more than 20 business days if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request has been satisfied but less than 90% of the Company, extend the Offer for such period as may be requested by the Company Common Stock has been validly tendered and not to exceed ten business days from such scheduled expiration dateproperly withdrawn. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shallpromptly after expiration of the Offer, Subsidiary shall accept for payment and pay for, and Parent shall cause Merger Sub toSubsidiary to accept for payment and pay for, pay for all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated Subsidiary is permitted to purchase pursuant to accept and pay for under applicable law. Notwithstanding the Offer immediately after the expiration of the Offer; providedforegoing, however, that notwithstanding the -------- ------- foregoing Parent may, Subsidiary may in its sole discretion, extend the expiration date of the Offer discretion elect to provide for a subsequent offering period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tenderedpursuant to, and not withdrawnon the terms required by, fewer than 90% of Rule 14d-11 under the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Exchange Act.
(bc) On the date of commencement of the Offer, Parent and Merger Sub Subsidiary shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule 14D-1 TO (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO") with respect to the OfferOffer which will comply in all material respects with the provisions of applicable federal securities laws, which shall and will contain an the offer to purchase relating to the Offer and a forms of related letter letters of transmittal and summary advertisement (such Schedule 14D-1 TO and the documents and exhibits included therein pursuant to which the Offer will shall be made, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents Parent shall comply as to form in all material respects with the requirements deliver copies of the Securities Exchange Act proposed forms of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary Company as far in order to make the statements therein, in light advance of the commencement of the Offer as is reasonably practicable under the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied for review and comment by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities lawsits counsel. The Company and its counsel shall be given a reasonable opportunity to review any amendments and supplements to the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company's stockholders. Parent and Merger Sub agree to shall provide the Company and its counsel in writing any comments Parentthat Subsidiary, Merger Sub Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof. Each of such comments.
(c) the Company, Parent and Subsidiary shall contribute promptly correct any information provided by it for use in the Offer Documents that shall have become false or misleading in any material respect and Parent and Subsidiary further agree to Merger Sub on a timely basis the funds take all steps necessary to purchase any shares of Common Stock that Merger Sub becomes obligated cause the Schedule TO as so corrected to purchase pursuant be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Offer stockholders of the Company, in each case, as and to perform any of its other obligations pursuant to this Agreementthe extent required by applicable federal securities laws.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 8.1 and so long as promptly as practicable but none of the events or circumstances set forth in no event Annex A hereto shall have occurred and be continuing, not later than the fifth business day from and including after the date of the public announcement of the execution of this Agreement, Merger Sub shallPurchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), and Parent shall cause Merger Sub toPurchaser to commence, commence the OfferOffer at the Share Price. The obligation of Merger Sub toPurchaser to consummate the Offer, and of Parent to cause Merger Sub to, commence the Offer and accept for payment, payment and to pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the those conditions set forth in Exhibit Annex A (any of which may be waived by Merger Sub and the other conditions to the Offer set forth in this Agreement. Purchaser expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the prior written consent of the Company, Merger Sub Parent or Purchaser shall not waive the Minimum Condition (as defined in Exhibit Annex A). The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer (determined using Rule 14d-2(a) under the Exchange Act).
(b) Purchaser expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, ; provided that without the prior written consent of the Company, Merger Sub shall not no modification or change may be made which (i) reduce decreases the number of shares of Common Stock subject to consideration payable in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v) change changes the form of consideration payable in the Offer (other than by increasing adding consideration), (iii) changes the cash offer priceMinimum Condition, (iv) or decreases the maximum number of Shares sought pursuant to the Offer, (v) changes the conditions to the Offer in a manner adverse to the stockholders of the Company, (vi) amend or modify imposes additional conditions to the Offer (other than in respect of any term consideration which is payable in addition to the Share Price), (vii) changes any other terms of the Offer in any a manner adverse to any the stockholders of the Company's stockholders. The initial expiration date shall be September 15, 1997or (viii) except as provided in the next sentence, extends the Offer. Notwithstanding the foregoing, Merger Sub mayPurchaser may (but shall not be required under this Agreement or otherwise to), without the prior written consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the OfferOffer on one or more occasions for such period as may be determined by Purchaser in its sole discretion (each such extension period not to exceed 10 business days at a time), if at the then scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation obligations to purchase shares of Common Stock accept for payment and pay for Shares shall not be satisfied, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer, and(C) extend the Offer on one or more occasions for an aggregate period of not more than five business days if the Minimum Condition has been satisfied but less than 90% of then outstanding Shares have been validly tendered and not properly withdrawn. Merger Sub agrees that: (A) Without limiting the right of Purchaser to extend the Offer pursuant to the immediately preceding sentence, in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to Minimum Condition shall not have been satisfied or that the failure of one or more of the conditions condition set forth in paragraph (d) of Annex A with respect to the first sentence HSR Act (as defined herein) or with respect to an action or proceeding by a Governmental Entity that shall not have been satisfied or waived at the scheduled or any extended expiration date of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof andOffer, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension periodPurchaser shall, and Parent shall cause Purchaser to, extend the Offer expiration date of the Offer, in five business day increments, until the earlier earliest to occur of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31the satisfaction or waiver of the Minimum Condition or such other condition, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach termination of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event accordance with its terms and (z) January 31, 2000. It is agreed that the Company is in breach hereof or conditions to the conditions specified in paragraphs (d) or (e) of Offer set forth on Annex A are applicable); provided that if -------- any such condition is not satisfied for the benefit of Purchaser and may be asserted by Purchaser or, except with respect to the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer Minimum Condition as set forth in accordance with the terms of this Section 1.1(a); and (B) , may be waived by Purchaser, in the event that Merger Sub would otherwise be entitled to terminate the Offer whole or in part at any scheduled expiration date thereof due solely time and from time to the failure of the Minimum Condition to be satisfiedtime, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration datein its sole discretion. Subject to On the terms and subject to the conditions of the Offer and this Agreement, Merger Sub shallpromptly after expiration of the Offer, Purchaser shall accept for payment and pay for, and Parent shall cause Merger Sub toPurchaser to accept for payment and pay for, pay for all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase pursuant to the Offer. Parent shall provide, or cause to be provided, the funds necessary to purchase any and all of the Shares that Purchaser becomes obligated to purchase pursuant to the Offer immediately after in accordance with the expiration terms of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997this Agreement.
(bc) On the date of commencement of the Offer, Parent and Merger Sub Purchaser shall file with the SEC with respect to the Offer a Tender Offer Statement on Schedule 14D-1 (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule 14D-1") with respect to the OfferOffer which will comply in all material respects with the provisions of applicable federal securities laws, which shall and will contain an the offer to purchase relating to the Offer (the "Offer to Purchase") and a forms of related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be madedocuments, together with any supplements or amendments thereto and including the exhibits thereto, are referred to herein collectively as the "Offer Documents"). The Offer --------------- Documents Parent shall comply as to form in all material respects with the requirements deliver copies of the Securities Exchange Act proposed forms of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder Schedule 14D-1 and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of Company within a material fact or omit reasonable time prior to state any material fact required to be stated therein or necessary in order to make the statements therein, in light commencement of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied Offer for review and comment by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Companycounsel. Parent and Merger Sub agree agrees to provide the Company and its counsel in writing any comments Parentthat Purchaser, Merger Sub Parent or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) thereof. The Company, Parent and Purchaser shall contribute promptly correct any information provided by it for use in the Schedule 14D-1 or the Offer Documents that shall be or shall have become false or misleading in any material respect and Parent and Purchaser further agree to Merger Sub on a timely basis the funds take all steps necessary to purchase any shares of Common Stock that Merger Sub becomes obligated cause the Schedule 14D-1 or Offer Documents as so corrected to purchase pursuant be filed with the SEC and disseminated to the Offer stockholders of the Company, as and to perform any of its other obligations pursuant to this Agreementthe extent required by applicable federal securities laws.
Appears in 1 contract
The Offer. (a) Subject to the provisions of Provided that this AgreementAgreement shall not have been terminated in accordance with Article VIII, as promptly as practicable but reasonably practicable, and in no any event later than the fifth business day from and including within ten (10) Business Days after the date of this Agreement (subject to the public announcement of this AgreementCompany having timely provided any information required to be provided by it pursuant to Section 1.2), Merger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) the Offer. The obligation obligations of Merger Sub toSub, and of Parent to cause Merger Sub toSub, commence the Offer and to accept for payment, payment and pay for, for any shares of Common Stock Shares tendered pursuant to the Offer shall only be subject only to (i) the conditions set forth in Exhibit A (any satisfaction of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)A hereto) and to (ii) the satisfaction or waiver by Mxxxxx Sub of each of the other conditions set forth in Exhibit A hereto (together with the Minimum Condition, the “Offer Conditions”) and the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunderhereof. Merger Sub expressly reserves the right right, in its sole discretion, to (A) increase the Offer Price (by increasing the Cash Consideration and/or the amounts that may become payable pursuant to the CVR Agreement), (B) waive any Offer Condition or (C) modify any of the other terms or conditions of the Offer prior to the Acceptance Time (as defined below) to the extent not inconsistent with the terms of the Offerthis Agreement, except that, unless otherwise provided by this Agreement, without the consent of the Company, Merger Sub shall not (i1) reduce the number of shares of Common Stock subject to the OfferOffer Price, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4), (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1, extend the Offer, (v2) change the form of consideration payable in the Offer (other than by increasing adding consideration as contemplated by Section 1.1(a)(A)), (3) reduce the cash offer pricenumber of Shares sought to be purchased in the Offer, (4) waive, amend or change the Minimum Condition or the condition set forth in clause (b)(v) in Exhibit A, (5) add to the Offer Conditions, (6) extend the expiration of the Offer other than in accordance with Section 1.1(e), (7) provide for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act or (vi) amend 8) modify any Offer Condition or modify any term of the Offer set forth in any this Agreement in a manner adverse to any the holders of Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the consummation of the Company's stockholders. Offer or prevent, materially delay or impair the ability of the Parent or Merger Sub to consummate the Offer, the Merger or the other transactions contemplated hereby.
(b) The initial expiration Offer shall initially be scheduled to expire at one minute after 11:59 pm Eastern Time on the date shall be September 15that is twenty (20) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the commencement of the Offer (the “Initial Expiration Date”) or, 1997in the event the Initial Expiration Date has been extended pursuant to and in accordance with this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been so extended, the “Expiration Date”). Notwithstanding anything to the foregoingcontrary contained in this Agreement, Parent and Merger Sub may, without shall only be permitted to extend the Offer with the consent of the Company, but subject .
(c) Subject to the Company's right to terminate terms of the Offer and this Agreement and the satisfaction of all of the Offer Conditions, Merger Sub will accept for payment (the date and time of such acceptance, the “Acceptance Time”) and thereafter pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer as soon as practicable after the Expiration Date. The Offer will not permit Shares to be tendered pursuant to guaranteed delivery procedures.
(d) Unless this Agreement is terminated pursuant to Section 8.1(b)(ii)8.1, Merger Sub shall not terminate or withdraw the Offer prior to any scheduled expiration date without the prior written consent of the Company in its sole and absolute discretion. In the event this Agreement is terminated pursuant to Section 8.1, Merger Sub shall promptly (and in any event within one (1) Business Day) following such termination terminate the Offer and shall not acquire any Shares pursuant thereto. If the Offer is terminated in accordance with this Agreement prior to the Acceptance Time, Merger Sub shall promptly return, or cause any depositary acting on behalf of Merger Sub to return, all tendered Shares to the tendering stockholders.
(e) Unless this Agreement shall have previously been validly terminated in accordance with Article 8, Merger Sub may extend the Offer from time to time as follows: (i) extend if on the Offerthen scheduled Expiration Date, if at the scheduled expiration date of the Offer Minimum Condition has not been satisfied or any of the conditions other Offer Conditions has not been satisfied (and, in the case of any Offer Condition that by its nature is to Merger Sub's obligation to purchase shares be satisfied at the Acceptance Time, is not then capable of Common Stock shall not be being satisfied, until such time as such conditions are satisfied ) or waived by Parent or (ii) Merger Sub if permitted hereunder, then Merger Sub may extend the Offer for one (1) or more occasions in consecutive increments of up to ten (10) Business Days each (or such longer period as may be agreed by the Company and Parent) in order to permit the satisfaction of such Offer Conditions (subject to the right of Parent or Merger Sub to waive any Offer Condition to the extent permitted hereunder); and (ii) Merger Sub may extend the Offer for the minimum period required by any rule, regulationapplicable Law, interpretation or position of the Securities and Exchange Commission (the "“SEC"”) or its staff or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: Nasdaq Stock Market LLC (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a“NASDAQ”) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration date. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, pay for all shares of Common Stock validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase pursuant to the Offer immediately after the expiration of the Offerits staff; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, shall not extend the Offer for such number of days (up or the Expiration Date to 20 calendar days) as a date later than the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997Outside Date.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable but in no event later than the fifth five business day from and including days after the date of the public announcement by Parent and the Company of the execution and delivery of this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, commence the Offer. The obligation of Merger Sub toSub, and of Parent to cause Merger Sub toSub, to commence the Offer and accept for payment, and pay for, any shares of Common Stock Shares tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub in its sole discretion, provided that, without the consent of the Company, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)"Offer Conditions") and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion ; provided, however, that paragraph (i) of the Shares tendered pursuant Offer Conditions shall apply only to the obligation of Sub, and of Parent to cause Sub, to consummate the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub expressly reserves the right to modify the terms of the Offer, except that, without the prior written consent of the Company, Merger Sub shall not (i) reduce the number of shares of Common Stock Shares subject to the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to or modify (other than waive) the conditions set forth in Exhibit AOffer Conditions, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or Offer, (vi) amend or modify any other term of or add any new term to the Offer in any manner materially adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares or (vii) waive the Minimum Condition (as defined in Exhibit A). Notwithstanding the foregoing, Merger Sub may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (iA) extend the Offer, if at the scheduled or extended expiration date of the Offer any of the conditions to Merger Sub's obligation to purchase shares of Common Stock Offer Conditions shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (iiB) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer, (C) extend the Offer from time to time until two business days after the expiration of the waiting period under the HSR Act (as defined in Section 4.05 below) and (D) extend the Offer for a period not to exceed 15 business days, notwithstanding that all conditions to the Offer or in order are satisfied as of such expiration date of the Offer, if, immediately prior to obtain any material regulatory approval applicable such expiration date (as it may be extended), the Shares tendered and not withdrawn pursuant to the Offer equal less than 90% of the outstanding Shares (on a fully diluted basis). In addition, Sub shall be obligated to extend the Offer. Merger Sub agrees that: (A) in , if at the event it would otherwise be entitled to terminate scheduled expiration date of the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence Offer Conditions capable of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfaction shall not have been satisfied or waived, it until the satisfaction or waiver thereof; provided, however, that there shall give the Company notice thereof and, at the request of the Company, if be no such conditions are reasonably likely obligation to be satisfied during the requested extension period, extend the Offer until beyond the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2) 60th business day after the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions commencement of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such period as may be requested by the Company not to exceed ten business days from such scheduled expiration dateOffer. Subject to the terms and conditions of the Offer and this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately promptly after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of shall the Shares will be tendered in the Offer. If, at any scheduled expiration date Offer expire prior to October 1January 21, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 19971998.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1") with respect to the OfferOffer acceptable in form and substance to the Company and within the time period set forth in subsection (a) above, which shall contain an offer to purchase and a related letter of transmittal (the "Letter of Transmittal") and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall be consistent with this Agreement, shall add no conditions to the consummation of the Offer not set forth in Exhibit A and shall add no provisions to the Offer materially adverse to the Company Stockholders. Parent and Sub agree that the Offer Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents Documents, on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation or warranty is made by Parent or Merger Sub with respect to written information supplied by the Company in writing or any of its stockholders specifically for inclusion or incorporation by reference in the Offer Documents. Each of Parent, Merger Sub and the Company each agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees agree to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents Schedule 14D-1 as so amended or supplemented corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the Company's stockholdersholders of Shares, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to the stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments. Parent and Sub shall also provide the Company and its counsel with copies of all written responses filed by Parent or Sub with the SEC and a reasonable opportunity to review and comment upon such responses prior to filing with the SEC.
(c) Parent shall contribute provide or cause to Merger be provided to Sub on a timely basis the funds necessary to purchase any shares of Common Stock accept for payment, and pay for, all Shares that Merger Sub becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer.
(d) The Company agrees that neither the Offer and to perform any nor purchases of its other obligations pursuant to this AgreementShares thereunder breach the terms of the Confidentiality Agreement (as defined in Section 7.02 below).
Appears in 1 contract
The Offer. (a) Subject to the provisions of this Agreement, as promptly as practicable practicable, but in no any event later than within five Business Days (as defined in Rule 14d-1(c)(6) promulgated under the fifth business day from and including Securities Exchange Act of 1934, as amended (the date "EXCHANGE ACT")) of the initial public announcement of this Agreementthe Offer, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, commence the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act), to purchase all of the outstanding shares of Common Stock, $.01 par value per share (the "SHARES"), of the Company at a price of $36.00 per Share, net to the seller in cash (such price, the "OFFER PRICE"), and Purchaser shall not withdraw the Offer and, subject to the conditions set forth in Exhibit A, shall purchase all Shares duly tendered and not withdrawn. The obligation of Merger Sub Purchaser to, and of Parent to cause Merger Sub Purchaser to, commence the Offer and accept for payment, and pay for, any shares of Company Common Stock tendered pursuant to the Offer shall be subject only to the conditions set forth in Exhibit A (any of which may be waived by Merger Sub Purchaser in its sole discretion) and to the terms and conditions of this Agreement; provided, provided thathowever, that Purchaser shall not, without the consent of the Company's consent, Merger Sub shall not waive the Minimum Condition (as defined in Exhibit A)) and to the terms and conditions of this Agreement. Merger Sub may at any time transfer or assign to one or more corporations directly or indirectly wholly owned by Parent the right to purchase all or any portion of the Shares tendered pursuant to the Offer, but no such assignment shall relieve Parent or Merger Sub of its obligations hereunder. Merger Sub Purchaser expressly reserves the right to modify the terms of the Offer, except that, without the consent of the Company, Merger Sub Purchaser shall not (i) reduce the number of shares of Common Stock subject Shares to be purchased in the Offer, (ii) reduce the price per share of Common Stock to be paid pursuant to the Offer (except pursuant to Section 3.4)Price, (iii) modify or add to the conditions set forth in Exhibit A, (iv) except as provided in the remainder of this Section 1.1next sentence, extend the Offer, (v) change the form of consideration payable in the Offer (other than by increasing the cash offer price) or (vi) amend or modify any other term of the Offer in any a manner adverse to any the holders of the Company's stockholders. The initial expiration date shall be September 15, 1997Shares. Notwithstanding the foregoing, Merger Sub Purchaser may, without the consent of the Company, but subject to the Company's right to terminate this Agreement pursuant to Section 8.1(b)(ii), (i) extend the Offer on one or more occasions for up to 10 Business Days for each such extension beyond the scheduled expiration date (the initial scheduled expiration date being 20 Business Days following commencement of the Offer), if at the scheduled expiration date of the Offer any of the conditions to Merger SubPurchaser's obligation to purchase accept for payment, and pay for, shares of Company Common Stock shall not be satisfiedsatisfied or waived, until such time as such conditions are satisfied or waived or waived, (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable --- to the Offer or in order to obtain any material regulatory approval applicable to the Offer. Merger Sub agrees that: (A) in the event it would otherwise be entitled to terminate the Offer at any scheduled expiration thereof due to the failure of one or more of the conditions set forth in the first sentence of the introductory paragraph or paragraphs (a) or (g) of Exhibit A to be satisfied or waived, it shall give the Company notice thereof and, at the request of the Company, if such conditions are reasonably likely to be satisfied during the requested extension period, extend the Offer until the earlier of (1) such time as such condition is, or conditions are, satisfied or waived and (2iii) the date chosen by the Company, which shall not be later than (x) December 31, 1997 or (y) the date on which the Company reasonably believes all such conditions will be satisfied (it being understood that the Company shall not be entitled to make such request if it is then in breach of this Agreement, and that nothing in this Section 1.1 shall modify Parent's and Merger Sub's right to terminate this Agreement in the event that the Company is in breach hereof or the conditions specified in paragraphs (d) or (e) of Annex A are applicable); provided that if -------- any such condition is not satisfied by the date so chosen by the Company, the Company may request and Merger Sub shall make further extensions of the Offer in accordance with the terms of this Section 1.1(a); and (B) in the event that Merger Sub would otherwise be entitled to terminate the Offer at any scheduled expiration date thereof due solely to the failure of the Minimum Condition to be satisfied, it shall, at the request of the Company, extend the Offer for such an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence if there shall not have been tendered sufficient Shares so that the Merger could be effected as may be requested by provided in the Company not to exceed ten business days from such scheduled expiration datelast sentence of Section 7.01(a). Subject to the terms and conditions of the Offer and this Agreement, Merger Sub Purchaser shall, and Parent shall cause Merger Sub Purchaser to, accept for payment, and pay for for, all shares of Common Stock Shares validly tendered and not withdrawn pursuant to the Offer that Merger Sub Purchaser becomes obligated to purchase accept for payment, and pay for, pursuant to the Offer immediately as soon as practicable after the expiration of the Offer; provided, however, that notwithstanding the -------- ------- foregoing Parent may, in its sole discretion, extend the expiration date of the Offer for a period not to exceed ten business days and in no event ending after December 31, 1997, if Parent reasonably believes that as a result of such extension 90% or more of the Shares will be tendered in the Offer. If, at any scheduled expiration date prior to October 1, 1997, there shall have been tendered, and not withdrawn, fewer than 90% of the Shares, then Merger Sub shall, at the request of the Company, extend the Offer for such number of days (up to 20 calendar days) as the Company may request. No such request shall be made by the Company if, in its sole judgment, it concludes that the Merger could be consummated on or prior to October 6, 1997.
(b) On the date of commencement of the Offer, Parent and Merger Sub shall file with the SEC a Tender Offer Statement on Schedule 14D-1 with respect to the Offer, which shall contain an offer to purchase and a related letter of transmittal and summary advertisement (such Schedule 14D-1 and the documents and exhibits included therein pursuant to which the Offer will be made, together with any supplements or amendments thereto, the "Offer Documents"). The Offer --------------- Documents shall comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the ------------ rules and regulations promulgated thereunder and the Offer Documents on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or Merger Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. Each of Parent, Merger Sub and the Company agrees promptly to correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect, and each of Parent and Merger Sub further agrees to take all steps necessary to amend or supplement the Offer Documents and to cause the Offer Documents as so amended or supplemented to be filed with the SEC and to be disseminated to the Company's stockholders, in each case as and to the extent required by applicable Federal securities laws. The Company and its counsel shall be given a reasonable opportunity to review the Offer Documents and all amendments and supplements thereto prior to their filing with the SEC or dissemination to stockholders of the Company. Parent and Merger Sub agree to provide the Company and its counsel any comments Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments.
(c) Parent shall contribute to Merger Sub on a timely basis the funds necessary to purchase any shares of Common Stock that Merger Sub becomes obligated to purchase pursuant to the Offer and to perform any of its other obligations pursuant to this Agreement.
Appears in 1 contract
