The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Ne Restaurant Co Inc), Agreement and Plan of Merger (Bertuccis of White Marsh Inc), Agreement and Plan of Merger (Bertuccis Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 hereof and that none of the events set forth in clause (2) of Exhibit A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, (but in no event later than five business days after following the initial public announcement of the Offer, terms of this Agreement) to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stockstock of the Company, par value $0.005 .01 per share, of the Company share (the "Shares" or "Common StockSHARES"), at a price of not less than $10.50 5.25 per Share, net to the seller in cashcash (the "OFFER"). For purposes Subject to the satisfaction of the Offer Conditions (as defined below) and the terms and conditions of this Article IAgreement, Sub shall, and Parent shall cause Sub to, accept for payment and pay for Shares validly tendered and not withdrawn pursuant to the party which makes the Offer, whether Parent or Sub, shall be referred to Offer as the "Offeror." soon as practicable under applicable law. The obligation of Offeror Sub to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer pursuant thereto shall be subject to only to those conditions set forth in Exhibit A hereto (i) the condition that there shall "OFFER CONDITIONS"), which may be validly tendered in accordance with the terms asserted by Parent or Sub regardless of the Offer prior circumstances giving rise to any such condition, or (except as set forth below with respect to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned Minimum Condition (as defined in Exhibit A)) waived by Parent or Sub, represents in whole or in part, at least ninety (90%) percent any time and from time to time in their sole discretion. The Company agrees that no Shares held by the Company or any of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing its Subsidiaries (as defined in Section 4.2(d9.11 hereof) of this Agreement) in an amount sufficient will be tendered to consummate the transactions contemplated hereby Sub pursuant to the terms Offer. Sub will not, without the prior written consent of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum ConditionCompany, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease or change the price per Share form of the consideration payable in the Offer, (ii) decrease the maximum number of Shares sought pursuant to be purchased the Offer (except as otherwise set forth in the OfferSection 1.01(c) hereof), (iii) impose additional conditions to the Offer in addition to those set forth in Annex I heretoOffer, (iv) change the conditions to the Offer (provided, that Parent or Sub in their sole discretion may waive any material respect adverse of the conditions to the Company, Offer other than the Minimum Condition) or (v) except as provided make any other change in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer terms or (vii) amend any other term conditions of the Offer in a manner which is materially adverse to the holders of the Shares. Notwithstanding If the foregoing, Offeror may, without the consent conditions set forth in Exhibit A are satisfied as of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any Sub may extend the Offer for up to ten business days in the aggregate, and may extend the Offer for a longer period with the prior written consent of the Company or as required by law. If the conditions to Offeror's obligation to accept for paymentset forth in Exhibit A are not satisfied or, and pay for, Shares (including, with respect to the Financing Conditionextent permitted by this Agreement, waived by Parent or Sub as of any scheduled expiration date, Sub may extend the Offer from time to time (but not beyond the date that is fifty business days from the date hereof) and, in any event, upon the written request of the Company, Sub will extend the Offer from time to time until the earlier of the consummation of the sale of Offer or forty business days from the Senior Notes date hereof (as defined in Section 4.2(d)) provided, that Sub shall not be satisfied or waived, until obligated to make any such time as extension if (i) it reasonably determines that all such conditions are not likely to be satisfied by such date or waived and (ii) extend it shall then have 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 right to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and terminate this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerterms).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Henkel Acquisition Corp Ii), Agreement and Plan of Merger (Dep Corp), Agreement and Plan of Merger (Dep Corp)
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 8.1, (ii) none of the events set forth in Annex I (other than paragraphs (f) and (i)) shall have occurred that would result in a failure to satisfy any of and be continuing and (iii) the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent Company shall or shall cause Sub tohave complied with its applicable obligations under Section 1.2, as promptly as practicable following after the date hereofeffectiveness of the Form 10, but and in no event later than any event, within five (5) business days after thereafter, the initial public announcement of the Offer, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "“Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred subject to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares (i) there being validly tendered in the Offer shall be subject only to (iin the aggregate) the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a that number of Shares which, together with any the Shares then beneficially owned by Parent or Subthe Purchaser, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors or (if a greater majority) upon the "adoption of this Agreement (collectively, the “Minimum Condition"), ”) and (ii) the receipt satisfaction or waiver of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions and requirements set forth in Annex I hereto. Offeror expressly reserves I. Subject to the right in its sole discretion to waive any such condition (including prior satisfaction or waiver by the Minimum Condition, provided that no such waiver Purchaser of the Minimum Condition and the other conditions and requirements set forth in Annex I, the Purchaser shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend consummate the Offer and to make any other changes in the accordance with its terms and conditions of accept for exchange, and exchange the OfferOffer Consideration for, all Shares tendered pursuant to the Offer as soon as practicable after the Purchaser is legally permitted to do so under applicable law; provided, however, that unless -------- ------- previously approved the initial expiration date of the Offer shall be the date that is twenty (20) business days following the commencement of the Offer (the “Initial Expiration Date”). The obligation of the Purchaser to accept for exchange, and to exchange the Offer Consideration for, any Shares validly tendered on or prior to the expiration of the Offer and not withdrawn shall be subject to the Minimum Condition and the other conditions and requirements set forth in Annex I. The Offer shall be made by means of an offer to exchange (the Company “Offer to Exchange”) that contains the terms set forth in writingthis Agreement, Offeror will the Minimum Condition and the other conditions and requirements set forth in Annex I. The Purchaser shall not (i) decrease the price per Share Offer Consideration, change the form of consideration payable in the Offer, (ii) decrease Offer or reduce the maximum number of Shares to be purchased in the OfferOffer without the prior written consent of the Company. For the avoidance of doubt: (x) if on the Initial Expiration Date (as it may be extended), (iii) impose all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time, in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentenceits sole discretion, extend the OfferInitial Expiration Date, for such period as the Purchaser may determine, (viy) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror Purchaser may, without in its sole discretion, provide a “subsequent offering period” in accordance with Rule 14d-11 under the consent of Exchange Act and (z) the CompanyPurchaser may, (i) in its sole discretion, extend the Offer beyond for any scheduled expiration date reason on one or more occasions for an aggregate period of not more than ten (the initial scheduled expiration date being 20 10) business days following commencement of beyond the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled latest expiration date of the OfferOffer that would otherwise be permitted under clause (x) of this sentence if, any on such expiration date, there have not been tendered (and not withdrawn) at least ninety percent (90%) of the conditions to Offeror's obligation to accept for payment, outstanding Shares on a fully diluted basis. The Purchaser may (i) increase the Offer Consideration and pay for, Shares (including, with respect extend the Offer to the Financing Condition, the consummation of the sale of the Senior Notes (as defined extent required by applicable law in Section 4.2(d)) shall not be satisfied or waived, until connection with such time as such conditions are satisfied or waived increase and (ii) extend the Offer for any period to the extent otherwise required by applicable law, in each case in its sole discretion and without the Company’s consent. The Purchaser shall not terminate the Offer prior to any rule, regulation, interpretation scheduled expiration date (as the same may be extended or position required to be extended) without the written consent of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the OfferCompany, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable except in the event that this Agreement is terminated pursuant to Section 8.1(d) of 8.1. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement. Subject Agreement is terminated prior to the terms and conditions exchange of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of in the Offer, subject to compliance with Rule 14e-1(c) under the Purchaser shall promptly return, and shall cause any depository or exchange agent, including the Exchange Act. Subject Agent, acting on behalf of the Purchaser, to return all tendered Shares to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerregistered holders thereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (DG FastChannel, Inc), Agreement and Plan of Merger and Reorganization (Point 360), Agreement and Plan of Merger and Reorganization (New 360)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure accordance with Article VIII and subject to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto(including that none of the events or conditions set forth therein (the "Exchange Offer Conditions") shall have occurred and be existing and not waived by Parent), Merger Sub shall, and Parent shall or shall cause Merger Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all of the issued and outstanding shares of common stockCompany Common Shares (including any and all Rights) as promptly as reasonably practicable, par value $0.005 per share, but in no event more than twenty (20) Business Days following the first public announcement by Parent and the Company of the execution of this Agreement, and shall take the actions specified in Section 1.1(c). Each Company Common Share accepted by Merger Sub pursuant to the Offer shall be exchanged for the right to receive from Parent (i) a fraction of a share of Parent Common Stock (the "Shares" or Stock Portion") determined by dividing (y) the quotient obtained by dividing $3.5 million by the Base Price, by (z) the Fully Diluted Common StockShare Number, with cash paid in lieu of fractional shares, as provided below and (ii) an amount in cash (the "Cash Portion"), at a price of not less than $10.50 per Sharedetermined by dividing (y) the quotient obtained by dividing the Company's Net Cash as reflected on the Reference Balance Sheet, net by (z) the Fully Diluted Common Share Number, rounded to the seller nearest whole cent, with .5 rounded up. The Stock Portion and the Cash Portion, or such greater aggregate amount per share paid by Merger Sub in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be are referred to herein as the "OfferorOffer Price." No certificate or scrip representing fractional shares of Parent Common Stock shall be issued pursuant to the Offer. All fractional shares of Parent Common Stock that a Company Stockholder would otherwise be entitled to receive as a result of the Offer shall be aggregated, and if a fractional share results from such aggregation, such holder shall be entitled to receive, in lieu thereof, an amount in cash determined by multiplying (i) the Base Price by (ii) the fraction of a share of Parent Common Stock to which such holder would otherwise have been entitled. The obligation of Offeror Merger Sub to accept for payment and to pay for any Company Common Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Exchange Offer prior to Conditions, this Agreement and applicable Laws. The Company agrees that any Company Common Shares held by the expiration date of the Offer and Company will not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby be tendered pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Ivillage Inc), Agreement and Plan of Merger (Promotions Com Inc), Agreement and Plan of Merger (Ivillage Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent the Company shall or shall cause Sub tocommence, within the meaning of Rule 13e-4(a)(4) under the Securities Exchange Act of 1934 (the "EXCHANGE ACT"), as promptly as practicable following after the date hereof, but in no event later than five business days after (as such term is defined in Rule 14d-1 under the initial Exchange Act, a "BUSINESS DAY") following the public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") Offer to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 14.25 per ShareShare (the "OFFER PRICE"), net to the seller sellers in cash, subject to any amounts required to be withheld under applicable federal, state, local or foreign income tax regulations. For purposes Subject to the extension of this Article Ithe Offer as provided below, the party which makes obligation of the Company to commence the Offer, whether Parent or Sub, shall be referred to as consummate the "Offeror." The obligation of Offeror Offer and to accept for payment and to pay for any Shares validly tendered in the Offer and not withdrawn shall be subject only to to: (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, which represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum ConditionMINIMUM CONDITION"), and (ii) the receipt satisfaction or waiver of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves At Buyer's request, the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition Company shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, Offer and make such other changes to extend the Offer and to make any other changes in the terms and conditions of the Offer; as Buyer may request, provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) be required to make any changes which decrease the price per Share payable in the Offer, (ii) decrease which change the form of consideration to be paid in the Offer, which reduce the maximum number of Shares to be purchased in the Offer, (iii) which impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change hereto or which broaden the scope of such conditions. The Company shall make no other changes to the Offer or waive any conditions to the Offer in or take any material other action, including, without limitation, notice of acceptance of tendered Shares to the Depositary, with respect adverse to the Offer without Buyer's prior written consent. The Offer will remain open (unless the Company, (v) except as provided in at the next sentencewritten request of Buyer, extend the Offer, (vi) change the form of consideration payable in terminates the Offer or (viiupon the occurrence of an event in Annex I) amend any other term for a period of twenty Business Days from the commencement of the Offer in a manner adverse to accordance with applicable law (the holders "EXPIRATION DATE") unless the Company, at the request of Buyer, extends the Sharesperiod of time for which the Offer is open as may be permitted or required by this Agreement, or applicable laws in which case the term "Expiration Date" will mean the latest time and date at which the Offer as so extended by the Company expires. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) Company shall extend the Offer beyond at any scheduled expiration date time up to the Outside Termination Date (the initial scheduled expiration date being 20 business days following commencement of the Offeras defined in Section 10.01) for a period one or more periods of not to extend beyond July 31, 1998more than an aggregate of 10 Business Days, if at any scheduled the initial expiration date of the Offer, or any of extension thereof, the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect condition to the Financing Condition, Offer requiring the consummation expiration or termination of any applicable waiting periods under the sale of the Senior Notes HSR Act (as defined in Section 4.2(d)4.03) shall is not be satisfied or waivedrequired. In addition, until the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such time as such conditions are satisfied or waived and (ii) increase in each case only at the request of Buyer. The Company shall, at Buyer's request, extend the Offer beyond the initial Expiration Date for any a period required by any ruleof up to 10 Business Days, regulationif, interpretation or position on the date of such extension, more than 85% but less than 90% of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreementoutstanding Shares on a fully diluted basis have been tendered. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant subject to the Offer that Offeror becomes obligated to accept for paymentclosing of the Stock Purchase as set forth in Article II herein, and pay forthe Company shall pay, pursuant to the Offer as soon promptly as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under for all Shares validly tendered and not withdrawn. Notwithstanding the Exchange Act. Subject to foregoing, the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to Company shall not be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations required to consummate the OfferOffer or pay the Offer Price for the Shares tendered unless it shall have received the proceeds from the sale of the Buyer Shares and the Financing or other funds arranged for by Buyer in an amount which shall be equal to or greater than the Offer Price multiplied by the number of Shares tendered.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Hilite Industries Inc), Agreement and Plan of Merger (Hilite Mergeco Inc), Agreement and Plan of Merger (Maher Donald M)
The Offer. (a) Provided that nothing this Agreement shall not have been --------- terminated in accordance with Section 7.1 and none of the events set forth in Annex A hereto (other than the events set forth in clause (g) thereof) shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub tobe continuing, as promptly as practicable following the date hereof, (but in no event later than five business days after from the initial public announcement of the Offerexecution hereof), Merger Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender an offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock, par value $0.005 .01 per shareshare (each a "SHARE" and, collectively, the "SHARES" or the "COMPANY COMMON STOCK"), of the Company (the "Shares" or "Common Stock")Company, at a price of not less than $10.50 55.50 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether the "OFFER PRICE"). Merger Sub shall, on the terms and subject only to the prior satisfaction or waiver of the conditions of the Offer set forth in Annex A hereto (except that the Minimum Condition (as defined herein) may not be waived by Parent or SubMerger Sub without the consent of the Company), shall be referred accept for payment and pay for Shares tendered as soon as it is legally permitted to as the "Offeror." do so under applicable law. The obligation obligations of Offeror Merger Sub to accept for payment and to pay for any and all Shares validly tendered in on or before the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a before the expiration of the Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Merger Sub, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing ConditionMINIMUM CONDITION") and (iiiii) the other conditions set forth in Annex I hereto. Offeror expressly reserves A hereto (the right in its sole discretion to waive any such condition (including "ADDITIONAL CONDITIONS" and, together with the Minimum Condition, provided that no such waiver the "OFFER CONDITIONS"). The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") containing the terms set forth in this Agreement and the Offer Conditions. Merger Sub shall not amend or waive the Minimum Condition and shall not decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) Price or decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offersought, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to or amend any other term or condition of the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the SharesShares or, except as provided in the next two sentences, extend the expiration date of the Offer without the prior written consent of the Company. Notwithstanding the foregoing, Offeror Merger Sub may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being on one or more occasions for an aggregate period of not more than 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998days, if at any the scheduled or extended expiration date of the Offer, any the Minimum Condition shall not be satisfied, (ii) extend the Offer from time to time until the earlier to occur of (x) the conditions to Offeror's obligation to accept for paymentsatisfaction or waiver of all Offer Conditions or (y) August 31, and pay for1998; provided, Shares (includinghowever, with respect to that notwithstanding the Financing Conditionforegoing, if all Offer Conditions -------- ------- other than the consummation of the sale of the Senior Notes HSR Condition (as defined in Section 4.2(dAnnex A hereto) have been satisfied or waived, Merger Sub may, if such HSR Condition is reasonably capable of being satisfied, extend the Offer without the consent of the Company until October 31, 1998 (either such date, as applicable, being the "EXTENSION DATE"), if at the scheduled or extended expiration date of the Offer any of the Offer Conditions (other than the Minimum Condition) which are reasonably capable of being satisfied shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (iiiii) 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 OfferOffer and (iv) extend the Offer on one or more occasions for an aggregate period of not more than 10 Business Days beyond the latest expiration date that would otherwise be permitted under clause (i), (ii) or (iii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares on a fully diluted basis; provided, however, that if the Offer is extended pursuant to this clause (iv) -------- ------- hereof, the conditions to the Offer set forth in clauses (b), (f) or (h) of Annex A hereto shall be deemed satisfied at all times thereafter. The limitations regarding Notwithstanding the terms foregoing, if requested by the Company, Merger Sub shall, and conditions Parent agrees to cause Merger Sub to, extend the Offer from time to time until the earlier to occur of (x) the satisfaction or waiver of all Offer Conditions or (y) the Extension Date if, and to the extent that, at the initial expiration date of the Offer, as set forth in or any extension thereof, all Offer Conditions have not been satisfied or waived and all such conditions are reasonably capable of being satisfied. In addition, the second preceding Offer Price may be increased and the immediately preceding sentences, shall not Offer may be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject extended to the terms and conditions extent required by law in connection with such increase, in each case without the consent of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferCompany.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Armstrong World Industries Inc), Agreement and Plan of Merger (Triangle Pacific Corp), Agreement and Plan of Merger (Armstrong World Industries Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 9.01 and that none of the events or conditions set forth in Annex A shall have occurred that would result in a failure to satisfy any of and be existing and shall not have been waived by Parent (the conditions set forth in paragraphs (a) through (i) of Annex I heretoA, Parent the “Tender Offer Conditions”), Purchaser shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended (together with the "rules and regulations thereunder, the “Exchange Act"”)) a tender offer the Offer as promptly as practicable and in any event within ten (as amended from time to time in accordance with this Agreement, 10) business days after the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cashdate hereof. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror Purchaser to accept for payment Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for any Shares each such tendered in the Offer and not subsequently withdrawn Share shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Tender Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I heretoConditions. Offeror Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent)condition, to increase the price per Per Share Amount payable in the Offer, to extend the Offer and to make any other changes in to the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the prior written consent of the Company in writing, Offeror will not (i) decrease the price per Minimum Condition (as defined in Annex A) may not be waived and (ii) no change may be made that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the Per Share Amount payable in the Offer, (iiC) decrease reduces the maximum number of Shares to be purchased in the Offer, (iiiD) impose imposes conditions to the Offer in addition to those set forth in Annex I A hereto, or (ivE) change amends the conditions to the Offer set forth in Annex A hereto in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner materially adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Comtech Telecommunications Corp /De/), Agreement and Plan of Merger (Radyne Corp), Agreement and Plan of Merger (Comtech Telecommunications Corp /De/)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any none of the conditions set forth in paragraphs (a) through (i) of Annex I heretoto this Agreement shall have occurred, Parent shall the Purchaser (or shall cause Sub toone or more other direct or indirect wholly-owned subsidiaries of Parent) shall, as promptly as practicable following not later than one business day after execution of this Agreement, publicly announce the date hereoftransactions contemplated hereby, but in no event and not later than five business days after the initial public announcement execution of the Offerthis Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 24.00 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as cash (the "Offeror.Offer," The obligation which term shall include any amendments to such Offer not prohibited by this Agreement) and, subject to a minimum of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms not less than a majority of the Offer prior to the expiration date of the Offer and not withdrawn a number of outstanding Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis basis) being validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other further conditions set forth in Annex I heretoof this Agreement, shall consummate the Offer. Offeror expressly reserves the right in its sole discretion The Offer shall be made by means of an offer to waive any such condition (including the Minimum Condition, provided that no such waiver of purchase containing the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and further conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to I. The Purchaser hereby covenants and agrees that it shall hold the Offer in any material respect adverse to open for no less than 25 business days. Simultaneously with the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Purchaser shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the Securities and Exchange Commission (the "SECCommission") or a Tender Offer Statement on Schedule 14D-1 with respect to the staff thereof applicable Offer (the "Schedule 14D-1"). Notwithstanding the foregoing, in the event any of the conditions set forth in Annex I to this Agreement shall have occurred, the Purchaser may terminate the Offer. The limitations regarding In the terms and conditions of event the Purchaser terminates the Offer, as set forth in the second preceding and the immediately preceding sentencesit may, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject subject to the terms and conditions prior written approval of the Offer and this AgreementBoard of Directors of the Company, Offeror shall accept seek the approval of the Company's stockholders for payment , and pay for, all Shares validly tendered and not withdrawn the Merger pursuant to the Offer that Offeror becomes obligated applicable provisions of the General Corporation Law of the State of Delaware, as amended ("Delaware Law"), as provided in Section 6.11. In such event, the Company shall take all necessary action to accept for paymentcall a special meeting of its stockholders to seek such approval, and pay for, pursuant to prepare and file with the Offer as soon as practicable after expiration of the Offer, subject Commission a proxy statement relating to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be takensuch special meeting, all actions in accordance with Sections 6.1 and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer6.2 hereof.
Appears in 2 contracts
Samples: 1 Agreement and Plan of Merger (WDR Acquisition Corp), Agreement and Plan of Merger (Wonderware Corp)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any none of the conditions set forth in paragraphs (a) through (i) of Annex I heretoto this Agreement shall have occurred, Parent shall or shall cause the Merger Sub toshall, as promptly as practicable following not later than one business day after execution of this Agreement, publicly announce the date hereoftransactions contemplated hereby, but in no event and not later than five business days after the initial public announcement execution of the Offerthis Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 9.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as cash (the "Offeror.Offer," The obligation of Offeror which term shall include any amendments to accept for payment and such Offer not prohibited by this Agreement) and, subject to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a minimum number of Shares which, together with any Shares then when added to the Shares, if any, beneficially owned by Parent the Purchaser, its affiliates or Sub, represents the Merger Sub (excluding Shares beneficially owned by the Purchaser by virtue of the Shareholders Agreement (as defined below)) would constitute at least ninety (90%) percent a majority of the outstanding Shares outstanding (on a fully-diluted basis basis) being validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I heretoof this Agreement, shall use its best efforts to consummate the Offer. Offeror expressly reserves the right in its sole discretion The Offer shall be made by means of an offer to waive any such condition (including the Minimum Condition, provided that no such waiver of purchase containing the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change and no other conditions. Simultaneously with the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Merger Sub shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of file with the Securities and Exchange Commission (the "SECCommission") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the a Tender Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant Statement on Schedule 14D-1 with respect to the Offer that Offeror becomes obligated (together with all amendments and supplements thereto, the "Schedule 14D-1"). The Schedule 14D-1 will include, as exhibits, the offer to accept for paymentpurchase and a form of letter of transmittal (collectively, together with any amendments and pay forsupplements thereto, pursuant the "Offer Documents"). The Company and its counsel shall be given a reasonable opportunity to review and make comments with respect to the Schedule 14D-1 and the Offer as soon as practicable after expiration Documents and all amendments and supplements thereto prior to their filing with the Commission or dissemination to stockholders of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tristar Aerospace Co), Agreement and Plan of Merger (Alliedsignal Inc)
The Offer. (a) Provided that nothing that: (x) this Agreement shall not have been terminated in accordance with Article V and (y) the Company shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub tocomplied with its obligations under Section 1.3, as promptly as practicable following reasonably practicable, and in any event within 10 days of the date hereofof this Agreement, but in no event later than five business days after the initial public announcement of the Offer, Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether . The obligations of Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to the terms and conditions of this Agreement, including (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer Minimum Condition (as defined in Exhibit A hereto) and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt satisfaction or waiver by Parent of cash proceeds each of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I heretoExhibit A hereto (together with the Minimum Condition, the “Offer Conditions”). Offeror Parent expressly reserves the right in its sole discretion to (A) increase the Offer Price, (B) waive any such condition Offer Condition (including other than the Minimum Condition, provided that no such waiver 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 Minimum Condition shall decrease number of Shares issued and outstanding, or the Minimum Condition to less than sixty-six and two-thirds Antitrust Condition) or (66 2/3%C) percent), to increase modify any of the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and or conditions of the Offer; providedOffer not inconsistent with the terms of this Agreement, howeverexcept that, that unless -------- ------- previously approved by without the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number consent of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, Parent shall not (v1) except as provided in reduce the next sentence, extend the OfferOffer Price, (vi2) change the form of consideration payable in the Offer (other than by adding cash consideration), (3) reduce the number of Shares sought in the Offer or (vii4) add to the Offer Conditions, (5) amend or modify any other term of the Offer Conditions in a manner adverse that would, individually or in the aggregate, reasonably be expected to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, prevent or materially delay the consummation of the sale Offer or prevent, materially delay or impair the ability of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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 Parent to the Offer. The limitations regarding the terms and conditions of consummate the Offer, as set forth in or (6) change or waive the second preceding and Minimum Condition, if the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to number of Shares, together with the Offer that Offeror becomes obligated to accept for paymentShares, and pay forif any, pursuant to the Offer as soon as practicable after expiration then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the Offernumber of Shares issued and outstanding, subject to compliance with 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 14e-1(c) 14d-11 promulgated under the Exchange Act. Subject 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 terms and conditions of the OfferAcceptance Time (collectively, Parent and Sub “Excluded Shares”) will each use its reasonable best efforts be tendered pursuant to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 2 contracts
Samples: Transaction Agreement (Ironwood Pharmaceuticals Inc), Transaction Agreement (Ironwood Pharmaceuticals Inc)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.1 and no event shall have occurred that and no circumstance shall exist which would result in a failure to satisfy any of the conditions condition set forth in paragraphs clause (a) through (iii)(a) of Annex I A hereto, Parent Purchaser shall or shall cause Sub to, commence the Offer as promptly soon as practicable following after the date hereof, but and in no any event later than five within eight business days after from the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cashdate hereof. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror Purchaser to accept for payment and to pay for any Shares validly tendered in the Offer and not withdrawn shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver by Purchaser of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent conditions or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions events set forth in Annex I heretoA hereto (the "Offer Conditions"). Offeror Purchaser expressly reserves the right right, in its sole discretion discretion, to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; providedprovided that, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease Purchaser may not waive the Minimum Condition (as defined in Annex A) or any of clauses (ii)(a), (e) or (f) of the Offer Conditions, (ii) Purchaser may not extend the expiration date of the Offer beyond the initial expiration date of the Offer except (A) as required by applicable law, (B) that if any condition to the Offer has not been satisfied or waived (other than as a result of the failure by Parent or Purchaser to perform any of its obligations under this Agreement), Purchaser may, in its sole discretion, extend the expiration date of the Offer for one or more periods (not in excess of 10 business days each) but in no event later than the Outside Date (as defined below) or (C) as provided hereafter in this Section 1.1(a), (iii) no change may be made which decreases the price per Share payable in the Offer, (iiiv) decrease there shall be no change to the form of consideration payable in the Offer (other than by adding consideration), (v) there shall be no reduction in the maximum number of Shares to be purchased in the Offer, Offer and (iiivi) impose conditions there shall be no imposition of any condition to the Offer in addition to those set forth in Annex I heretoherein, (iv) change the conditions there shall be no modification or amendment to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in Conditions and the Offer shall not be otherwise modified or (vii) amend any other term of the Offer amended, in each case, in a manner which is adverse to the holders of the Shares. Notwithstanding On the foregoing, Offeror may, without terms and subject to the consent prior satisfaction or waiver of the CompanyOffer Conditions, Parent shall provide funds to Purchaser and Purchaser shall accept for payment and pay for Shares as soon as it is permitted to do so under applicable law; provided that (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 extend beyond July 31, 1998, if at any each scheduled expiration date of the Offer, if any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer Conditions shall not be satisfied or waived, until such time as such conditions are satisfied Purchaser shall, at the request of the Company, extend the expiration date of the Offer for one or waived more periods (not in excess of 10 business days each) but in no event later than the Outside Date and (ii) Purchaser 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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions initial expiration date of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to be 20 business days from the commencement of the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance in accordance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerlaw.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Reh Mergersub Inc), Agreement and Plan of Merger (Reh Mergersub Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure accordance with Article VIII and subject to satisfy any of the conditions set forth in paragraphs Annex A (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toas defined below), as promptly as practicable following the date hereofpracticable, but in no event later than five business days (5) Business Days after the initial public announcement of the Offerexecution of this Agreement by the parties, Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement), the "Offer") to purchase Offer for any and all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cashOffer ------------ Price. For purposes The parties agree such public announcement shall occur promptly after the execution and delivery of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." Agreement. The obligation of Offeror Parent to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall the FD Shares and at least a majority of issued and outstanding Shares not owned by FD be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum ------- Condition"), and (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I heretoA hereto ("Annex --------- ----- A"). Offeror Parent expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and Price or to make - any other changes in the terms and conditions of the Offer; provided, however, that that, unless -------- ------- previously approved by the Company Special Committee (the "Special ------- Committee") of the Board of Directors (the "Company's Board") and the Company's --------- --------------- Board in writing, Offeror will not no change may be made which (i) decrease decreases the price per Share payable Offer Price, (ii) changes the form of consideration to be paid in the Offer, (iiiii) decrease reduces the maximum number of Shares to be purchased in the Offer, (iiiiv) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the CompanyA, (v) except as provided amends the conditions set forth in Annex A to broaden the next sentence, extend the Offerscope of such conditions, (vi) change the form of consideration payable in the Offer or (vii) amend amends any other term of 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 the Minimum Condition. Notwithstanding It is agreed that the foregoingconditions set forth in Annex A other than the Minimum Condition are for the sole benefit of Parent and may be waived by Parent, Offeror mayin whole or in part at any time and from time to time in its sole discretion, without other than the consent Minimum Condition, as to which prior written approval of the Special Committee and the Company, (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 extend beyond July 31, 1998, if 's Board is required. The failure by Parent at any scheduled expiration date of the Offer, time to exercise any of the conditions foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to Offeror's obligation to accept for payment, and pay for, time. The Company agrees that no Shares (including, with respect to held by the Financing Condition, the consummation Company or any of the sale of the Senior Notes its Subsidiaries (as defined in Section 4.2(d)9.2) shall not will be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth tendered in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fluor Daniel Gti Inc), Agreement and Plan of Merger (International Technology Corp)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (aii)(a) through - (iii)(g) of Annex I hereto, Parent shall or shall cause Sub to, then as promptly as practicable following after the date hereof, but hereof (and in no any event later than five within eight (8) business days after the initial public announcement of the Offerdate of this Agreement), Merger Sub shall (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase any and all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Stock at a price of not less than $10.50 per ShareShare equal to the Per Share Amount, net to the seller in cash. For purposes of this Article I, without interest and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the party which makes "Offer Documents") with the Offer, whether Parent or Sub, shall be referred to as Securities and Exchange Commission (the "Offeror." SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer Documents. The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn Expiration Date (as hereinafter defined) a number of Shares whichthat, together with any the Shares then owned by Parent and/or Merger Sub or Subany other subsidiary of Parent, represents at least ninety (90%) percent a majority of the Shares outstanding on a fullyFully-diluted basis Diluted Basis (as hereinafter defined) (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) to the other conditions set forth in Annex I hereto. Offeror Merger Sub expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and of or conditions to the Offer, provided that without the prior written consent of the Offer; providedCompany, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the OfferMinimum Condition may not be waived, (ii) decrease the maximum number condition to the Offer that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of Shares to 1976, as amended (the "XXX Xxx") xx xxxer any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be purchased in the Offerwaived, (iii) impose no change may be made that changes the form of consideration to be paid, decreases the Per Share Amount or the number of Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I hereto, and (iv) no other change the conditions may be made to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror mayexcept as otherwise provided in this Section 1.01(a), without the consent of the Company, Merger Sub shall have the right to extend the Offer, provided that such extension does not extend beyond the later of (x) July 31, 2003 and (y) the date that is 30 days after the date that the Company has complied with its obligations under Section 6.03 (the "Outside Date") (i) extend from time to time if, at 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offeror extended Expiration Date, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived and 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 OfferOffer or any period required by applicable law. The limitations regarding Offer shall remain open until 12:00 midnight on the terms and conditions of date that is twenty (20) business days after the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions commencement of the Offer and this Agreement(the "Expiration Date"), Offeror unless Merger Sub shall accept have extended the period of time for payment which the Offer is open pursuant to, and pay forin accordance with, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, this Agreement or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.as may be
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Elite Information Group Inc), Agreement and Plan of Merger (Elite Information Group Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub Purchaser to, and Purchaser shall, as promptly soon as practicable following after the date hereof, but in no any event later than within five business days after the initial public announcement of the Offerexecution hereof, commence (within the meaning of Rule 14d-2 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 tender offer 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 amended from time defined therein) and the termination provisions of Section 8 hereof. Purchaser shall consummate the Offer on the terms and subject to time the conditions provided in accordance with this Section 1.1. Subject to the terms and conditions of this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror Purchaser to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver by Purchaser of the Offer prior Conditions. The Offer shall be made by means of an offer to purchase which shall contain as conditions only the expiration date of the Offer Minimum Condition and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves , and, subject to the right in its sole discretion to waive any such condition (including the Minimum Conditionsucceeding sentence, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six otherwise contain, and two-thirds (66 2/3%) percent)be entirely consistent with, to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of 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, howeverprovided that, that unless -------- ------- previously approved by without the Company in writingconsent of the Company, Offeror will not neither Parent nor Purchaser shall (i) decrease amend or waive the price per Share payable in Minimum Condition or the OfferHSR Condition (as defined 5 herein), (ii) decrease amend any other condition of the Offer as set forth herein or in Annex I hereto, (iii) reduce the Per Share Amount, (iv) change the form of consideration to be paid in the Offer (other than by adding cash consideration), (v) reduce the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, or (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner which, in the reasonable judgment of the Company, is adverse to the holders of Shares. The Per Share Amount shall be net to the Sharessellers in cash, without interest, subject to reduction only for any applicable federal back-up withholding taxes. Notwithstanding the foregoing, Offeror Purchaser may, without the consent of the Company, subject to the Company's right to terminate this Agreement pursuant to Article 8, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond any the then-scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998), if at any the then-scheduled expiration date of the Offer, Offer any of the conditions to OfferorPurchaser's obligation to accept for payment, payment and pay for, for the Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied 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. The limitations regarding , and (iii) extend the terms and conditions Offer for an aggregate period of not more than five business days beyond the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not latest expiration date that would otherwise be applicable in the event this Agreement is terminated pursuant to Section 8.1(dpermitted under clause (i) or (ii) of this Agreementsentence 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 increased without the consent of the Company. Subject to the terms and conditions of the Offer, including the Offer and this AgreementConditions, Offeror Purchaser shall accept for payment , and pay for, for all Shares validly duly tendered and not withdrawn pursuant at the earliest time at which it is permitted to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration do so under applicable provisions of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act; provided that, as set forth above, Purchaser shall have the right, in its sole discretion, to extend the Offer for up to five business days notwithstanding the prior satisfaction of the Offer Conditions, in order to attempt to satisfy the requirements of Section 253 of the DGCL. Subject It is agreed that the Offer Conditions other than the Minimum Condition and the condition relating to the terms termination or expiration of applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") (the "HSR Condition") are solely for the benefit of Purchaser and conditions may be asserted by Purchaser regardless of the circumstances 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 discretion. On the date of commencement of the Offer, Parent and Sub Purchaser, with the cooperation of, and prior review thereof by, the Company, shall file with the Commission a Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer that will each contain or will incorporate by reference the Offer (or portions thereof) and forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Schedule 14D-1, and all amendments and supplements thereto, shall comply as to form in all material respects with the provisions of all applicable federal securities laws. Purchaser, and the Company with respect to information supplied by it for use its reasonable best efforts in the Schedule 14D-1 or the Offer Documents, agree promptly to takecorrect the Schedule 14D-1 or the Offer 2 6 Documents if and to the extent that any of them shall have become false or misleading in any material respect or any event occurs which should be set forth in an amendment or supplement to the Schedule 14D-1, and Purchaser shall take all steps necessary to cause the Schedule 14D-1 as so corrected or cause supplemented to be takenfiled with the Commission and such Offer Documents as so corrected to be disseminated to holders of Shares and any other holders of securities of the Company (if any), all actions in each case as and to dothe extent required by applicable federal securities laws. In addition, Parent and Purchaser agree to promptly provide the Company and its counsel in writing with any comments Parent, Purchaser or cause their counsel may receive from time to be done, all things necessary, proper time from the SEC or advisable under applicable laws and regulations to consummate the Offer.its staff. 1.2
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bowne & Co Inc), Agreement and Plan of Merger (Bowne & Co Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereofpracticable, but in no event later than five business days after the initial public announcement of the Offerexecution of this Agreement, the Purchaser shall, and the Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash all of the issued and outstanding shares of common stockCommon Stock (the "Shares"), together with the associated rights, if any, to purchase Series A participating Cumulative Preferred Stock, par value $0.005 .01 per shareshare ("Series A Shares"; and together with the Shares, of the Company (the "Shares" or Securities"Common Stock"), ) at a price of not less than $10.50 11.625 per Share, Security net to the seller in cash; it being understood that the Offer will not apply to the 179,656 Shares (or associated rights) previously held by the Trust which are being returned to the Company and canceled as described in the third recital to this Agreement. For purposes The obligations of this Article I, the party which makes Purchaser and the Offer, whether Parent or Sub, shall be referred to as consummate the "Offeror." The obligation of Offeror Offer and to accept for payment and to pay for any Shares purchase the Securities tendered in the Offer shall be subject only to (i) the conditions set forth in Annex A hereto. The Purchaser shall not without the Company's prior written consent reduce the price per Security or the number of Securities sought to be purchased or modify the form of consideration to be received by holders of the Securities in the Offer, increase the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not clause (i) decrease of the price per Share payable in the Offerfirst sentence of Annex A hereto, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose additional conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner materially adverse to the holders of the SharesSecurities. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect Subject only to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreementset forth in Annex A, Offeror shall accept for payment the Purchaser shall, and the Parent shall cause the Purchaser to, pay for, for all Shares of the Securities validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerlegally permissible.
Appears in 2 contracts
Samples: Plan of Merger (Cambrex Corp), Plan of Merger (Cambrex Corp)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, but in no event later than five U.S. business days after following the initial public announcement of the Offerexecution of this Agreement, Merger Subsidiary shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended an offer (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase (i) all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 28.00 per Common Share ("COMMON SHARE PRICE") and (ii) all of the Preferred Shares at a price equal to the Common Share Price times 326.531 per Preferred Share, in each case, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichthat, together with any the Shares then beneficially owned by Parent or SubParent, represents at least ninety (90%) percent a majority of the Common Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing ConditionMINIMUM CONDITION") and (iii) to the other conditions set forth in Annex I hereto. Offeror Merger Subsidiary expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; provided, howeverprovided that no change may be made that, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will not (i) decrease waives the Minimum Condition, changes the form of consideration to be paid, decreases the price per Share payable in or the Offer, (ii) decrease the maximum number of Shares to be purchased sought in the Offer, (iii) impose Offer or imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change I. If all of the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer are not satisfied or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at waived on any scheduled expiration date of the Offer, any of Merger Subsidiary shall extend the conditions Offer from time to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, time until such time as such conditions are satisfied or waived and (ii) waived, provided that Merger Subsidiary shall not be required to extend the Offer for any period required by any rule, regulation, interpretation or position of beyond the Securities and Exchange Commission (the "SEC") or the staff thereof applicable date referred to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement10.01(b)(i). Subject to the terms foregoing and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Merger Subsidiary shall, and Parent shall cause it to, accept for payment and Sub will each use its reasonable best efforts to takepay for, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.as
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Meggit PLC), Agreement and Plan of Merger (Whittaker Corp)
The Offer. (a) Provided Subject to the provisions of this Agreement and provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex ANNEX I hereto, Parent shall or shall cause Sub the Purchaser to, as promptly as reasonably practicable following after the date hereof, but in no event later than five (5) business days after following the initial public announcement of the Purchaser's intention to commence the Offer, commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement), the "Offer") to purchase Offer for all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 18.00 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) to a minimum of 2,649,538 Shares (or such other number of Shares, when added to the condition that there number of Shares already owned by Parent, the Purchaser or any direct or indirect wholly owned Subsidiary (as defined in Section 1.3(a)) of Parent, as shall be constitute a majority of the Company's Fully Diluted Shares (as defined in Section 4.2) (the "Minimum Shares") being validly tendered in accordance with the terms of the Offer prior to the expiration date or termination of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Share Condition") and (iiiii) to the other conditions to the Offer set forth in Annex I heretoANNEX 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 Offer (the "Tendered Shares"), but no such assignment shall relieve the Purchaser of its obligations hereunder. Offeror The Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer set forth in ANNEX I and to make any other changes in modify the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that unless -------- ------- previously approved by that, without the Company in writingprior written approval of the Company, Offeror will the Purchaser shall not amend or modify the terms of the Offer to (i) decrease reduce the cash price per Share payable in to be paid pursuant to the Offer, (ii) decrease reduce the maximum number of Shares as to be purchased in which the OfferOffer is made, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable to be paid in the Offer Offer, (iv) modify or waive the Minimum Share Condition, or (viiv) amend any impose conditions to its obligation to accept for payment or pay for the Tendered Shares other term than those set forth in ANNEX I. The Offer may not be extended without the Company's 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 Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoinginitial expiration date, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being which shall be 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) there shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares have been validly tendered and not withdrawn pursuant that number of Shares necessary to permit the Offer that Offeror becomes obligated Merger to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration be effected without a meeting of the Offer, subject to compliance Company's stockholders in accordance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferDGCL.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Andros Inc), Agreement and Plan of Merger (Andros Acquisition Inc)
The Offer. (a) Provided that nothing (i) 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 Offer shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toand be continuing, as promptly as practicable following practicable, the date hereof, but in no event later than five business days after the initial public announcement Buyer shall (or shall cause a Subsidiary of the Offer, Buyer to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase Offer for any and all of the issued and outstanding shares of common stock, par value $0.005 per share, Company Shares. In the event that the Buyer shall cause a Subsidiary of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net Buyer to the seller in cash. For purposes of this Article I, the party which makes commence the Offer, whether Parent or Sub, each reference to the Buyer in this Article I and Annex I shall be referred deemed, where applicable, to as refer to such Subsidiary. Each Company Share accepted by the "Offeror." Buyer pursuant to the Offer shall be exchanged for the right to receive the Offer Price from the Buyer. The obligation of Offeror the Buyer to accept for payment and to pay for any Company Shares tendered in the Offer 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 date of the Offer Expiration Time and not withdrawn a number of Company Shares whichthat, together with any the Company Shares then owned by Parent or Subthe Buyer and its Subsidiaries, represents at least ninety ninety-five percent (9095%) percent of the Outstanding Company Shares outstanding on a fully-diluted basis (the "Minimum ConditionMINIMUM CONDITION"), ; and (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror I. The Buyer expressly reserves the right in its sole discretion to increase the Offer Price, to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and or to make any other changes in the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that that, unless -------- ------- previously approved by the Company in writing, Offeror will not no change may be made that: (i1) decrease decreases the price per Share payable Offer Price; (2) changes the form or combination of consideration to be paid in the Offer, ; (ii3) decrease reduces the maximum number of Company Shares to be purchased in the Offer, ; (iii4) impose amends the conditions to the Offer in addition to those set forth in Annex I heretoto broaden the scope of such conditions, (iv) change the conditions to add any additional conditions, or otherwise amend any other material term of the Offer in any material respect a manner materially adverse to the CompanyCompany Shareholders; (5) extends the Offer, except as provided in Section 1.1(b) or in the next sentence; or (v6) amends the Minimum Condition, except as provided in the next sentence, extend . The Buyer expressly reserves the Offer, (vi) change right to amend or waive the form Minimum Condition to reduce the percentage of consideration payable Outstanding Company Shares required to be validly tendered in accordance with the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date terms of the Offer, any of PROVIDED that the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Buyer shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for a period of not fewer than 10 Business Days after any period required by any rule, regulation, interpretation such amendment or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offer. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerwaiver.
Appears in 2 contracts
Samples: Offer Agreement (Hewlett Packard Co), Offer Agreement (Hewlett Packard Co)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I A hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, hereof (but in no event later than five business days after from the initial public announcement of the Offerexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all of the issued and outstanding shares of common stock(i) Common Stock, par value $0.005 0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock"), ) at a price of not less than $10.50 35.00 per Common Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Common Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror.Common Offer Price," provided that Purchaser shall not be required to increase the Common Offer Price) and (ii) Class A Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and Harris Trust and Savings Xxxx, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Offeror the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided that, if the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that all conditions to the Offer shall first have been satisfied or waived. The obligations of the Purchaser to accept for payment and to pay for any and all Shares validly tendered in on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Subthe Purchaser, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition Offer Price or decrease the number of Shares sought, or impose any additional conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the SharesShares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror maythe Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of Section 7.01(b)(i) hereof if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer have not been satisfied or waived. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of the Company. In the event of any increase in the Common Offer Price, (i) extend the Class A 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for paymentPrice will be increased by an equal amount, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to any increase in the terms and conditions of Class A Offer Price, the Common Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub Price will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerincreased by an equal amount.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Berg Acquisition Co), Agreement and Plan of Merger (Berg Acquisition Co)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with its terms and none of the events or conditions specified in ANNEX A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause exist, Acquisition Sub toshall, as promptly soon as practicable following after the date hereof, (but in no event later than five the fifth business days after day following the initial public announcement of the OfferOffer (treating the business day on which such public announcement occurs as the first business day)), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations thereunder (the "Exchange ActEXCHANGE ACT")) a tender an offer to purchase (as such offer to purchase may be amended from time to time in accordance with the terms of this Agreement, the "OfferOFFER") to purchase all of the issued and outstanding shares ("SHARES") of common stock, par value $0.005 1.00 per share, of the Company (the "Shares" or COMPANY COMMON STOCK"Common Stock"), ) at a price of not less than $10.50 20.00 per Share, net to the seller in cash. For purposes of this Article Icash (less applicable withholding taxes, the party which makes if any) (such price, or such other price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." The OFFER PRICE"). After the commencement of the Offer, the Offer and the obligation of Offeror Acquisition Sub to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the conditions set forth in ANNEX A hereto and the condition (the "MINIMUM CONDITION") that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent two-thirds of the Shares outstanding on a fully-fully diluted basis (the "Minimum ConditionMINIMUM PERCENTAGE"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as . Parent and Acquisition Sub expressly reserve the Company shall agree or as are not materially more onerous than as right to waive any condition set forth in ANNEX A, to change the Commitments (form or amount payable per Share in the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition Offer (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%Offer Price) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Parent shall not amend, or permit to be amended, the Offer to (i) decrease the price per Share payable in Offer Price, (ii) change the consideration into a form other than cash, (iii) add any conditions to the obligation of Acquisition Sub to accept for payment and pay for Shares tendered pursuant to the Offer, (iiiv) decrease amend (other than to waive) the Minimum Condition or the other conditions set forth in ANNEX A, or (v) reduce the maximum number of Shares to be purchased in the Offer. If on the initial scheduled expiration date of the Offer (the "INITIAL EXPIRATION DATE"), (iii) impose which shall be 20 business days after the date the Offer is commenced, all conditions to the Offer shall not have been satisfied or waived, Acquisition Sub may, from time to time, in addition to those its sole discretion, extend the expiration date of the Offer (the "EXPIRATION DATE"); provided, however, that, except as set forth in Annex I heretobelow, the Expiration Date, as extended, shall be no later than the date that is 60 business days immediately following the Initial Expiration Date (iv) change the "FINAL EXPIRATION DATE"); and provided further that if on the Initial Expiration Date, all conditions to the Offer in any material respect adverse shall have been satisfied or waived other than the Minimum Condition, Acquisition Sub shall be required to extend the Expiration Date to the Company, (v) except as provided in date that is ten business days immediately following the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the SharesInitial Expiration Date. Notwithstanding the foregoing, Offeror mayif on the Initial Expiration Date, without the consent applicable waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX XXX") in respect of the Company, (i) extend Offer shall not have expired or been terminated and all other conditions to 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are have been satisfied or waived other than the Minimum Condition and clause (iia) of ANNEX A as it relates to compliance with the HSR Act or other applicable antitrust laws, Acquisition Sub shall be required to extend the Offer Expiration Date for any period required by any rule, regulation, interpretation or position such additional periods as may be necessary to permit the parties to seek to obtain termination of the Securities waiting period under the HSR Act in accordance with Section 7.1 below up to the date that is nine months after the date upon which Parent files a pre-merger notification and Exchange Commission report form under the HSR Act (the "SECHSR EXPIRATION DATE"); provided, however, that if the applicable waiting period (and any extension thereof) under the HSR Act in respect of the Offer expires or the staff thereof applicable is terminated prior to the Offerdate that is ten business days prior to the HSR Expiration Date, the Expiration Date shall be the date which is ten business days immediately following public disclosure of the expiration or termination of the waiting period under the HSR Act. The limitations regarding Acquisition Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under this Agreement and applicable law. The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") containing the terms set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , the Minimum Percentage and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerset forth in ANNEX A hereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wyman Gordon Co), Agreement and Plan of Merger (Precision Castparts Corp)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than two (2) business days after the public announcement of the terms of this Agreement, the Purchaser shall commence the Offer, in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that would result the Purchaser shall use its best efforts to commence the Offer as soon as practicable after the public announcement of the terms of this Agreement, but in a failure no event later than two business days after such public announcement. The Offer shall expire and terminate on the twentieth (20th) business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in order to satisfy any of the conditions set forth in paragraphs Annex I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (if) of Annex I heretohereto shall have occurred or be existing, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five (2) two business days after the initial public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, Purchaser shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance file with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the staff thereof applicable "Offer Documents"), which shall contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer. The limitations regarding , which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business days after such public announcement. The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant to the Offer will be subject only to the satisfaction of the conditions set forth in Annex I hereto. Without the prior written consent of the Company, the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, as decrease the number of Common Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the second preceding and Minimum Condition (as defined in Annex I), impose additional conditions to the immediately preceding sentences, shall not be applicable Offer or amend any other term of the Offer in any manner adverse to the event this Agreement is terminated pursuant holders of Common Shares; provided that the Purchaser expressly reserves the right to Section 8.1(dwaive any condition to the Offer (other than the Minimum Condition) without the consent of this Agreementthe Company. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Offeror shall Purchaser will accept for payment , and pay for, for all Common Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser shall make reasonable provision for the payment of Offer proceeds to be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the Company's outstanding Common Shares. Subject to Section 8.01, if any of the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by the Purchaser as of the Expiration Date (or any subsequently scheduled expiration date), Purchaser will extend the Offer from time to time, in each case, for the shortest time period that it reasonably believes is necessary for the consummation of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions Each of the Offer, Parent and Sub will each parties hereto shall use its reasonable best efforts to take, or cause all conditions precedent set forth in Annex I to be taken, all actions fulfilled and avoid the occurrence of any event or to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offercure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zeigler Coal Holding Co), Agreement and Plan of Merger (Aei Resources Inc)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoaccordance with its terms, Parent shall or shall cause Acquisition Sub toshall, as promptly soon as practicable following after the date hereof, (but in no event later than five business days after following the initial public announcement of the Offer), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations thereunder (the "Exchange Act")) a tender an offer to purchase (as such offer to purchase may be amended from time to time in accordance with the terms of this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 5.00 per Share, net to the seller in cash. For purposes of this Article Icash (less applicable withholding taxes, the party which makes if any) (such price, or such other price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." The Offer Price"). After the commencement of the Offer, the Offer and the obligation of Offeror Acquisition Sub to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the conditions set forth in Annex A hereto and the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum ConditionPercentage"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as . Parent and Acquisition Sub expressly reserve the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions right to waive any condition set forth in Annex I hereto. Offeror expressly reserves A, to change the right form or amount payable per Share in its sole discretion to waive any such condition the Offer (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%Offer Price) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Parent shall not amend, or permit to be amended, the Offer to (i) decrease the price per Share payable in the OfferOffer Price, (ii) decrease change the consideration into a form other than cash, (iii) amend (other than to waive) the Minimum Condition or the other conditions set forth in Annex A, or (iv) reduce the maximum number of Shares to be purchased in the Offer; provided further, (iii) impose conditions to the Offer in addition to those set forth in Annex I heretohowever, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (that if on the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of which shall be 20 business days after the date the Offer is commenced, all conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such Acquisition Sub may, from time as such conditions are satisfied or waived and (ii) to time, in its sole discretion, extend the Offer for any period required by any ruleexpiration date, regulationprovided, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offerhowever, that such expiration date, as extended, shall be no later than December 31, 1998. The limitations regarding Acquisition Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.1
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 7.1 hereof and none of the events set forth in Annex I hereto shall have occurred that would result or be existing, Sub (or another direct or indirect wholly-owned Subsidiary of Parent in a failure to satisfy any Parent's sole discretion (so long as such change of entity shall not adversely affect the intended tax-free nature of the conditions set forth transaction), in paragraphs (awhich case all references to "Sub" in this Agreement shall be to such other Subsidiary) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, 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")) not later than ten (10) Business Days after the date hereof the Offer to exchange for each Share: (i) a tender offer fraction of a share of Parent Common Stock equal to the Exchange Ratio and (ii) cash in an amount equal to (A) Ten Dollars and Fifty Cents ($10.50) minus (B) an amount equal to the product of (x) the Exchange Ratio multiplied by (y) the Parent Market Price, without interest (the "Per Share Cash Consideration") as amended from time to time in accordance with promptly as practicable following the date hereof (together, the "Exchange Offer Consideration"). For purposes of this Agreement, the "Offer"Exchange Ratio" shall be equal to the result obtained by dividing Five Dollars and Twenty-Five Cents ($5.25) to purchase all by the Parent Market Price; provided if the number of shares of Parent Common Stock otherwise issuable as part of the issued Exchange Offer Consideration (assuming valid tender and outstanding shares no withdrawal of common stock, par value $0.005 per share, of the Company Thirty-Nine Million Five Hundred Thousand (39,500,000) Shares) would otherwise exceed Fifteen Million (15,000,000) (the "Shares" or "Common StockMaximum Number"), at then the Exchange Ratio shall be reduced to a price of not less than $10.50 per Share, net number equal to the seller in cash. For purposes quotient of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned Maximum Number divided by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing Thirty-Nine Million Five Hundred Thousand (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent39,500,000), rounded to increase four decimal points. In the price per Share payable in the Offerevent that Parent declares a stock split, to extend the Offer and to make any stock dividend or other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer reclassification or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, exchange with respect to Parent Common Stock with a record or ex-dividend date occurring during the Financing Condition, Valuation Period or for the consummation period between the termination of the sale of Valuation Period and the Senior Notes (as defined in Section 4.2(d)) shall not Effective Time, there will be satisfied or waived, until such time as such conditions are satisfied or waived and (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 an appropriate adjustment made to the Offerclosing sales prices during the Valuation Period and the Maximum Number for purposes of calculating the Exchange Ratio. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer."
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of accordance with Article VIII and the conditions set forth in paragraphs clauses (ab)(i), (ii), (iii), (iv)(A) through and (iiv)(B) of Annex I hereto, Parent hereto shall or shall cause Sub tohave been satisfied, as promptly as practicable following reasonably practicable, and in any event within ten Business Days of the date hereofof this Agreement, but in no event later than five business days after the initial public announcement of the OfferMerger 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"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or . The obligations of Merger Sub, shall be referred and of Parent to as the "Offeror." The obligation of Offeror cause Merger Sub, to accept for payment and to pay for any Shares validly tendered in (and not validly withdrawn) pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer Minimum Condition (as defined in Annex I hereto) and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt satisfaction, or waiver by Merger Sub or Parent, of cash proceeds each of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition hereto (including together with the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent“Offer Conditions”), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions hereof. Parent and Merger Sub expressly reserve the right, in their sole discretion, to (A) increase the Offer Consideration, (B) waive any Offer Condition (other than the Minimum Condition), or (C) modify any of the other terms or conditions of the Offer; , except that, without the prior written consent of the Company, Parent and Merger Sub shall not (1) reduce the amount of the Cash Consideration or the amount of the Milestone Payment (provided, howeverfor the avoidance of doubt, that unless -------- ------- previously approved by any increase in required withholding Tax due to changes in applicable Law shall not be considered a reduction to the Company in writing, Offeror will not (i) decrease the price per Share payable in the OfferOffer Consideration), (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii2) impose conditions to the Offer Milestone Payment in addition to those the conditions set forth in Annex I hereto, the form of CVR Agreement (iv) change or modify any of the conditions to the Offer Milestone Payment set forth in any material respect the CVR Agreement in a manner adverse to the Companyholders of CVRs in their capacity as such), (v) except as provided in the next sentence, extend the Offer, (vi3) change the form of consideration payable in the Offer (other than by adding consideration), (4) reduce the number of Shares subject to the Offer, (5) waive, amend or change the Minimum Condition, (vii6) amend any other term impose conditions to the Offer in addition to the Offer Conditions, (7) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (8) modify any Offer Condition set forth in this Agreement in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (in their capacity as defined in Section 4.2(dsuch)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Miromatrix Medical Inc.)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (aii)(a) through - (iii)(g) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, but hereof (and in no any event later than five business days after the initial public announcement within eight (8) Business Days of the Offerdate of this Agreement), Merger Subsidiary shall (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended 1934 Act) an offer (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase any and all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), outstaxxxxx Xxares at a price of not less than $10.50 9.00 per Share, net to the seller in cash. For purposes of this Article Icash and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "SCHEDULE TO") and all other necessary documents with the SEC (collectively, the party which makes "OFFER DOCUMENTS"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Offer1934 Act, whether Parent and publish, send or Sub, shall be referred to as give the "Offeror." disclosure required by Rule 14d-6 under the 1934 Act by complying with the dissemination requirements of Rule 14d-4 under the 1934 Act in each case in connection with the Offer Documents. The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichthat, together with any the Shares then owned by Parent and/or Merger Subsidiary or Subany other Subsidiary of Parent, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing ConditionMINIMUM CONDITION") and (iii) to the other conditions set forth in Annex I hereto. Offeror Merger Subsidiary expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and of or conditions to the Offer, provided that without the prior written consent of the Offer; providedCompany, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the Minimum Condition may not be waived, (ii) no change may be made that changes the form of consideration to be paid, decreases the price per Share payable in or the Offer, (ii) decrease the maximum number of Shares to be purchased sought in the Offer, (iii) impose Offer or imposes conditions to the Offer in addition to those set forth in Annex I hereto, and (iviii) no other change the conditions may be made to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, Merger Subsidiary shall have the right to extend the Offer (i) extend from time to time if, at 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 extend beyond July 31, 1998, if at any scheduled or extended expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived and 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 OfferOffer or any period required by applicable law. The limitations regarding Offer shall remain open until the terms and conditions of date that is twenty (20) Business Days after the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions commencement of the Offer and this Agreement(the "EXPIRATION DATE"), Offeror unless Parent shall accept have extended the period of time for payment which the Offer is open pursuant to, and pay forin accordance with, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of this Agreement or as may be required by applicable law, in which event, the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.term "
Appears in 1 contract
The Offer. (a) Provided that nothing (i) this Agreement shall not have occurred that would result been terminated in a failure to satisfy any accordance with Section 8, (ii) none of the conditions events set forth in paragraphs clauses (a) through (ii)–(v) of Annex I heretohereto shall have occurred and be continuing (and shall not have been waived by Parent) and (iii) the Company shall have complied with its applicable obligations under Section 1.2, unless otherwise agreed by Parent and the Company, as promptly as reasonably practicable after the public announcement of the execution of this Agreement, Parent shall or shall cause Merger Sub to, or NAH to commence (as promptly as practicable following defined in Rule 14d-2 promulgated under the date hereof, but in no event later than five business days after Exchange Act) the initial public announcement Offer to purchase each share of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of Company’s common stock, par value $0.005 0.01 per shareshare (“Company Common Stock”), issued and outstanding on the Acceptance Date, in exchange for, at the election of the Company (the "Shares" or "Common Stock"holder thereof, and subject to Section 1.5(b)(iv), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) for each share of Company Common Stock with respect to which an election to receive cash has been effectively made and not revoked (a “Cash Election”), the condition that there shall right to receive in cash from Parent, NAH or Merger Sub, as applicable, without interest, an amount equal to $61.25 (the “Per Share Cash Consideration”) or (ii) for each share of Company Common Stock with respect to which an election to receive common shares of Parent, €0.01 par value per share (“Parent Common Shares”), has been effectively made and not revoked (a “Stock Election”), the right to receive from Parent, NAH or Merger Sub, as applicable, 3.545 Parent Common Shares, and any cash to be validly tendered paid in lieu of fractional Parent Common Shares pursuant to this Agreement (the “Per Share Stock Consideration” and, together with the Per Share Cash Consideration, as determined in accordance with Section 1.5, the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"“Consideration”), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") ; and (iii) the for each share of Company Common Stock other conditions set forth in Annex I hereto. Offeror expressly reserves than shares as to which a Cash Election or a Stock Election has been effectively made and not revoked (“Non-Election Shares”), the right to receive from Parent such Per Share Stock Consideration and/or Per Share Cash Consideration as is determined in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, accordance with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer1.5.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoaccordance with its terms, Parent shall or shall cause Acquisition Sub toshall, as promptly soon as practicable following after the date hereof, (but in no event later than five business days after following the initial public announcement of the Offer), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations thereunder (the "Exchange Act")) a tender an offer to purchase (as such offer to purchase may be amended from time to time in accordance with the terms of this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 5.00 per Share, net to the seller in cash. For purposes of this Article Icash (less applicable withholding taxes, the party which makes if any) (such price, or such other price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." The Offer Price"). After the commencement of the Offer, the Offer and the obligation of Offeror Acquisition Sub to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the conditions set forth in Annex A hereto and the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum ConditionPercentage"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as . Parent and Acquisition Sub expressly reserve the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions right to waive any condition set forth in Annex I hereto. Offeror expressly reserves A, to change the right form or amount payable per Share in its sole discretion to waive any such condition the Offer (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%Offer Price) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by without the Company in writingprior written consent of the Company, Offeror will Parent shall not amend, or permit to be amended, the Offer to (i) decrease the price per Share payable in the OfferOffer Price, (ii) decrease change the consideration into a form other than cash, (iii) amend (other than to waive) the Minimum Condition or the other conditions set forth in Annex A, or (iv) reduce the maximum number of Shares to be purchased in the Offer; provided further, (iii) impose conditions to the Offer in addition to those set forth in Annex I heretohowever, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (that if on the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of which shall be 20 business days after the date the Offer is commenced, all conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such Acquisition Sub may, from time as such conditions are satisfied or waived and (ii) to time, in its sole discretion, extend the Offer for any period required by any ruleexpiration date, regulationprovided, interpretation or position of the Securities and Exchange Commission (the "SEC") or the staff thereof applicable to the Offerhowever, that such expiration date, as extended, shall be no later than December 31, 1998. The limitations regarding Acquisition Sub shall, on the terms and subject to the prior satisfaction or waiver of the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.A-1
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I A hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, hereof (but in no event later than five business days after from the initial public announcement of the Offerexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all of the issued and outstanding shares of common stock(i) Common Stock, par value $0.005 0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock"), ) at a price of not less than $10.50 35.00 per Common Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Common Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror.Common Offer Price," provided that Purchaser shall not be required to increase the Common Offer Price) and (ii) Class A Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and Harrxx Xxxst and Savings Bank, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Offeror the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided that, if the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that all conditions to the Offer shall first have been satisfied or waived. The obligations of the Purchaser to accept for payment and to pay for any and all Shares validly tendered in on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Subthe Purchaser, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition Offer Price or decrease the number of Shares sought, or impose any additional conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the SharesShares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror maythe Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of Section 7.1(b)(i) hereof if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer have not been satisfied or waived. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of the Company. In the event of any increase in the Common Offer Price, (i) extend the Class A 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for paymentPrice will be increased by an equal amount, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to any increase in the terms and conditions of Class A Offer Price, the Common Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub Price will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerincreased by an equal amount.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Berg Electronics Corp /De/)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (f) of Annex I hereto shall have occurred or be existing, no later than two (2) business days after the public announcement of the terms of this Agreement, the Purchaser shall commence the Offer, in accordance with the requirements of Regulations 14D and 14E promulgated under the Exchange Act, and any applicable State securities laws, to purchase all of the issued and outstanding Common Shares for the Offer Price net to the seller thereof in cash, provided, however, that would result the Purchaser shall use its best efforts to commence the Offer as soon as practicable after the public announcement of the terms of this Agreement, but in a failure no event later than two business days after such public announcement. The Offer shall expire and terminate on the twentieth (20th) business day from the commencement of the Offer (the "Expiration Date"); provided, however, that the Purchaser shall have the right to extend the Expiration Date up to ten (10) additional business days in order to satisfy any of the conditions set forth in paragraphs Annex I hereto other than the Offer Financing Condition, provided that the failure of such conditions to be satisfied is not due to a breach of this Agreement by Parent or Purchaser. Provided that this Agreement shall not have been terminated in accordance with its terms and none of the events set forth in Paragraphs (a) through (if) of Annex I heretohereto shall have occurred or be existing, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five (2) two business days after the initial public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, Purchaser shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance file with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the Securities and Exchange Commission (the "SEC") the Purchaser's Tender Offer Statement on Schedule 14D-1 (together with any supplements or amendments thereto, the staff thereof applicable "Offer Documents"), which shall contain (as an exhibit) the Purchaser's offer to purchase the Common Shares (the "Offer to Purchase") which shall be mailed to the holders of Common Shares with respect to the Offer. The limitations regarding , which shall contain the conditions set forth in Annex I hereto and no others; it being understood that the Offer shall be on the terms and subject to the conditions that are agreed to by the parties hereto and no others and that the Purchaser shall use its best efforts to file the Tender Offer Statement on Schedule 14D-1 as soon as practicable, but in no event later than two business days after such public announcement. The obligation of Purchaser to accept for payment or pay for any Common Shares tendered pursuant to the Offer will be subject only to the satisfaction of the condition set forth in Annex I hereto. Without the prior written consent of the COMPANY, the Purchaser shall not decrease the price per Common Share or change the form of consideration payable in the Offer, as decrease the number of Common Shares sought to be purchased in the Offer, change the conditions set forth in Annex I, waive the second preceding and Minimum Condition (as defined in Annex I), impose additional conditions to the immediately preceding sentences, shall not be applicable Offer or amend any other term of the Offer in any manner adverse to the event this Agreement is terminated pursuant holders of Common Shares; provided that the Purchaser expressly reserves the right to Section 8.1(dwaive any condition to the Offer (other than the Minimum Condition) without the consent of this Agreementthe COMPANY. Subject to the terms and conditions of the Offer and this AgreementAgreement and the satisfaction of all the conditions of the Offer set forth in Annex I hereto as of any expiration date, Offeror shall Purchaser will accept for payment , and pay for, for all Common Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after such Expiration Date (the time of such purchase being referred to herein as the "Offer Purchase Closing"). Purchaser shall make reasonable provision for the payment of Offer proceeds to be made by wire transfer of immediately available funds to any person tendering Common Shares representing more than 1% of the COMPANY's outstanding Common Shares. Subject to Section 8.01, if any of the conditions set forth in Annex I hereto are not satisfied or, to the extent permitted by this Agreement, waived by the Purchaser as of the Expiration Date (or any subsequently scheduled expiration date), Purchaser will extend the Offer from time to time, in each case, for the shortest time period that it reasonably believes is necessary for the consummation of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions Each of the Offer, Parent and Sub will each parties hereto shall use its reasonable best efforts to take, or cause all conditions precedent set forth in Annex I to be taken, all actions fulfilled and avoid the occurrence of any event or to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offercure any event which may prevent such conditions precedent set forth in Annex I from being fulfilled.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Princess Beverly Coal Holding Co Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub Purchaser to, and Purchaser shall, as promptly soon as practicable following after the date hereof, but in no any event later than within five business days after the initial public announcement of the Offerexecution hereof, commence (within the meaning of Rule 14d-2 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 tender offer price equal to the Per Share Amount, net to the sellers thereof in cash, 6 subject to the conditions set forth in Annex I hereto (the "Offer Conditions") including the Minimum Condition (as amended from time defined therein) and the termination provisions of Section 8 hereof. Purchaser shall consummate the Offer on the terms and subject to time the conditions provided in accordance with this Section 1.1. Subject to the terms and conditions of this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror Purchaser to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver by Purchaser of the Offer prior Conditions. The Offer shall be made by means of an offer to purchase which shall contain as conditions only the expiration date of the Offer Minimum Condition and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves , and, subject to the right in its sole discretion to waive any such condition (including the Minimum Conditionsucceeding sentence, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six otherwise contain, and two-thirds (66 2/3%) percent)be entirely consistent with, to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of 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, howeverprovided that, that unless -------- ------- previously approved by without the Company in writingconsent of the Company, Offeror will not neither Parent nor Purchaser shall (i) decrease amend or waive the price per Share payable in Minimum Condition or the OfferHSR Condition (as defined herein), (ii) decrease amend any other condition of the Offer as set forth herein or in Annex I hereto, (iii) reduce the Per Share Amount, (iv) change the form of consideration to be paid in the Offer (other than by adding cash consideration), (v) reduce the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, or (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner which, in the reasonable judgment of the Company, is adverse to the holders of Shares. The Per Share Amount shall be net to the Sharessellers in cash, without interest, subject to reduction only for any applicable federal back-up withholding taxes. Notwithstanding the foregoing, Offeror Purchaser may, without the consent of the Company, subject to the Company's right to terminate this Agreement pursuant to Article 8, (i) extend the Offer on one or more occasions for up to ten business days for each such extension beyond any the then-scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998), if at any the then-scheduled expiration date of the Offer, Offer any of the conditions to OfferorPurchaser's obligation to accept for payment, payment and pay for, for the Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied 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. The limitations regarding , and (iii) extend the terms and conditions Offer for an aggregate period of not more than five business days beyond the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not latest expiration date that would otherwise be applicable in the event this Agreement is terminated pursuant to Section 8.1(dpermitted under clause (i) or (ii) of this Agreementsentence 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 7 Law (the "DGCL"). In addition, the Per Share Amount may be increased without the consent of the Company. Subject to the terms and conditions of the Offer, including the Offer and this AgreementConditions, Offeror Purchaser shall accept for payment , and pay for, for all Shares validly duly tendered and not withdrawn pursuant at the earliest time at which it is permitted to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration do so under applicable provisions of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act; provided that, as set forth above, Purchaser shall have the right, in its sole discretion, to extend the Offer for up to five business days notwithstanding the prior satisfaction of the Offer Conditions, in order to attempt to satisfy the requirements of Section 253 of the DGCL. Subject It is agreed that the Offer Conditions other than the Minimum Condition and the condition relating to the terms termination or expiration of applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") (the "HSR Condition") are solely for the benefit of Purchaser and conditions may be asserted by Purchaser regardless of the circumstances 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 discretion. On the date of commencement of the Offer, Parent and Sub Purchaser, with the cooperation of, and prior review thereof by, the Company, shall file with the Commission a Schedule 14D-1 (the "Schedule 14D-1") with respect to the Offer that will each contain or will incorporate by reference the Offer (or portions thereof) and forms of the related letter of transmittal and summary advertisement (which documents, together with any supplements or amendments thereto, are referred to herein collectively as the "Offer Documents"). The Schedule 14D-1, and all amendments and supplements thereto, shall comply as to form in all material respects with the provisions of all applicable federal securities laws. Purchaser, and the Company with respect to information supplied by it for use its reasonable best efforts in the Schedule 14D-1 or the Offer Documents, agree promptly to takecorrect the Schedule 14D-1 or the Offer Documents if and to the extent that any of them shall have become false or misleading in any material respect or any event occurs which should be set forth in an amendment or supplement to the Schedule 14D-1, and Purchaser shall take all steps necessary to cause the Schedule 14D-1 as so corrected or cause supplemented to be takenfiled with the Commission and such Offer Documents as so corrected to be disseminated to holders of Shares and any other holders of securities of the Company (if any), all actions in each case as and to dothe extent required by applicable federal securities laws. In addition, Parent and Purchaser agree to promptly provide the Company and its counsel in writing with any comments Parent, Purchaser or cause their counsel may receive from time to be done, all things necessary, proper time from the SEC or advisable under applicable laws and regulations to consummate the Offerits staff.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Donnelley Enterprise Solutions Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereof, (but in no event later than five business days after from the initial public announcement of the Offerexecution hereof), the Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all of the issued and outstanding shares of common stockCommon Stock, par value $0.005 0.20 per share, of the Company share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company at a price of not less than $10.50 20.00 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"). The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Offeror the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided that, if the number of Shares that have been physically tendered and not withdrawn are more than 80% but less than 90% of the outstanding Shares determined on a fully diluted basis, the Purchaser may extend the Offer for up to five business days and thereafter on a day-to-day basis for up to an additional five business days from the date that all conditions to the Offer shall first have been satisfied or waived. The obligations of the Purchaser to accept for payment and to pay for any and all Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer on or prior to the expiration date of the Offer and not withdrawn a shall be subject only to there being validly tendered and not withdrawn prior to the expiration of the Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Subthe Purchaser, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to waive any such condition (including the Minimum Conditionthis Agreement, provided that no such waiver of the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I A hereto. The Purchaser shall not amend or waive the Minimum Condition and shall not decrease the Offer Price or decrease the number of Shares sought, (iv) change the conditions to or amend any other term or condition of the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the SharesShares or extend the expiration date of the Offer without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror maythe Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until February 23, 1998 if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer have not been satisfied or waived. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Texas Instruments Inc)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I A hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, hereof (but in no event later than five business days after from the initial public announcement of the Offerexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all of the issued and outstanding shares of common stock(i) Common Stock, par value $0.005 0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock"), ) at a price of not less than $10.50 35.00 per Common Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Common Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror.Common Offer Price," provided that Purchaser shall not be required to increase the Common Offer Price) and (ii) Class A Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and Xxxxxx Trust and Savings Bank, dated as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Offeror the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided that, if the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that all conditions to the Offer shall first have been satisfied or waived. The obligations of the Purchaser to accept for payment and to pay for any and all Shares validly tendered in on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Subthe Purchaser, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition Offer Price or decrease the number of Shares sought, or impose any additional conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the SharesShares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror maythe Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of Section 7.01(b)(i) hereof if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer have not been satisfied or waived. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of the Company. In the event of any increase in the Common Offer Price, (i) extend the Class A 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for paymentPrice will be increased by an equal amount, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to any increase in the terms and conditions of Class A Offer Price, the Common Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub Price will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerincreased by an equal amount.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred --------- that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toMerger Subsidiary shall, as promptly as practicable following after the date hereof, but in no event later than five business days after following the initial public announcement of the Offerterms of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended an offer (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase all of the issued and outstanding shares (the "SHARES") of common stock, $0.01 par value $0.005 per share, of the Company (the "Shares" or COMMON STOCK"Common Stock"), ) at a price of not less than $10.50 16.25 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there a number of Shares which, together with the Shares then owned by Buyer, represents at least a majority of the Shares outstanding on a fully diluted basis shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing ConditionMINIMUM CONDITION") and (iii) to the other conditions set forth in Annex I hereto. Offeror Merger Subsidiary expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease or any of the Minimum Condition other conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; provided, however, provided that unless no change may be made which changes the form of -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease consideration to be paid or decreases the price per Share payable in or the Offer, (ii) decrease the maximum number of Shares to be purchased sought in the Offer, (iii) impose Offer or which imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change or amends the terms and conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Compaq Computer Corp)
The Offer. (a) Provided that nothing this Agreement has not been terminated pursuant to Article VIII hereof and that none of the events set forth in Exhibit A hereto (the "Offer Conditions") shall have occurred that would result in a failure to satisfy any and be continuing, as soon as is reasonably practicable (but no later than the fifth business day after the public announcement by Parent and the Company of the conditions set forth in paragraphs execution and delivery of this Agreement (a) through (i) of Annex I heretocounting the business day on which such announcement is made)), Parent Purchaser shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of outstanding Shares, including the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock")associated Rights, at a price of not less than $10.50 29.00 per Shareshare, net to the seller in cash. For purposes of this Article I, the party which makes cash (as paid pursuant to the Offer, whether Parent or Sub, shall be referred to as the "Offeror." Offer Consideration"). The obligation of Offeror Parent and Purchaser to commence the Offer, to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant shall be subject to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I Exhibit A hereto. Offeror Purchaser expressly reserves the right right, in its sole discretion discretion, to waive any such condition (including the Minimum Condition, provided that no such waiver of other than the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable as defined in the Offer, to extend the Offer Conditions) and to make any other changes in the terms and conditions of the Offer; provided, howeverPROVIDED that, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease no change may be made which changes the price per Share Minimum Condition or decreases the Offer Consideration, changes the form of consideration payable in the OfferOffer (other than by adding consideration), (ii) decrease reduces the maximum number of Shares to be purchased in the Offer, (iii) impose or amends the terms or the conditions of the Offer in a manner which is adverse to the holders of the Shares, or which imposes conditions or terms to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerherein.
Appears in 1 contract
The Offer. (a) (i) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and that none of the events set forth in clause (iii) of Exhibit A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Purchaser shall, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereof, (but in no event later than five business days after following the initial public announcement of the Offer, terms of this Agreement) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to ------------ purchase all of the issued and outstanding shares of common stockstock of the Company, par value $0.005 0.001 per share, of the Company share (the "Shares" or "Common Stock"), including the associated Common Stock purchase ------------ rights (the "Rights") issued pursuant to the Rights Agreement dated as of August ------ 4, 1998 (the "Rights Agreement") between the Company and Firstar Bank Milwaukee, ---------------- N.A. (formerly named Firstar Trust Company), as Rights Agent (the Common Stock and the Rights are hereinafter referred to as the "Shares"), at a price (such ------ price, or any higher price as may be paid in the Offer, the "Offer Price") of not less than ----------- $10.50 5.05 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as cash (the "Offeror." Offer"). The obligation of Offeror ----- Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer pursuant thereto shall be subject to only to those conditions set forth in Exhibit A hereto (i) the condition that there shall "Offer Conditions"), any of which may be validly tendered waived ---------------- by Purchaser in accordance with the terms of the Offer prior to the its sole discretion. The initial expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent shall be the twenty first business day following the commencement of the Shares outstanding on a fully-diluted basis Offer (determined in accordance with Rule 14d-1(e)(6) under the "Minimum Condition"Exchange Act), (ii) . Purchaser expressly reserves the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient right to consummate the transactions contemplated hereby pursuant to modify the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and Offer, except that, without the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver prior written consent of the Minimum Condition Company, Purchaser shall not (A) decrease or change the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions form of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share consideration payable in the Offer, (iiB) decrease the maximum number of Shares sought pursuant to be purchased in the Offer, (iiiC) impose additional conditions to the Offer in addition to those set forth in Annex I heretoOffer, (ivD) change the conditions to the Offer in or (E) make any material respect adverse to the Company, (v) except as provided other change in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer terms or (vii) amend any other term conditions of the Offer in a manner which is materially adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Technologies Corp /De/)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer been commenced, would result in a failure to satisfy any of the conditions set forth in paragraphs Annex I hereto (a) through other than the conditions described in Paragraphs (i), (ii) ----- - and (iii) of Annex I hereto, Parent shall or shall cause Sub toI), as promptly as practicable following after the date hereof, but in ----- - no event later than five seven (7) business days after following the initial public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, Merger Sub shall, and Purchaser shall cause Merger Sub to, commence the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Offer at a price of not less than $10.50 18.25 per Shareshare of Company Common Stock, net to the seller stockholders of the Company in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as cash (the "Offeror." Offer Price"). The obligation of Offeror to accept for payment and to pay for any Shares tendered in the ----- ----- Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichshares of Company Common Stock that, together with any Shares the shares of Company Common Stock then owned by Parent or Purchaser and/or Merger Sub, represents at least ninety (90%) percent a majority of the Shares shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition"), and (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the ------- --------- other conditions set forth in Annex I heretohereto (collectively with the Minimum ----- - Condition, the "Offer Conditions"). Offeror Merger Sub expressly reserves the right in its sole discretion to ----- ---------- waive any such condition (including of the Minimum ConditionOffer Conditions and to make any change in the terms or Offer Conditions, provided that that, no such change or waiver may be made that, without the -------- ---- prior written consent of the Minimum Condition shall decrease Company, waives or changes the Minimum Condition to less than sixty-six and two-thirds Offer Conditions described in Paragraphs (66 2/3%) percenti), (ii), (iv)(a) or (h) of Annex I hereto, changes the ----- - form of consideration to increase the price per Share payable be paid in the Offer, to extend decreases the Offer and to make any other changes in Price or the terms and conditions number of the Offer; provided, however, that unless -------- ------- previously approved by the shares of Company in writing, Offeror will not (i) decrease the price per Share payable Common Stock sought in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect hereto or is otherwise ----- - materially adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent stockholders of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (PPLC Acquisition Corp)
The Offer. (a) Provided that nothing this Agreement shall not ------------- --------- have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time been terminated in accordance with this AgreementArticle IX, unless otherwise agreed by Parent and the Company, no later than three Business Days following effectiveness of a Registration Statement on Form S-4 (together with any amendments or supplements thereto, the "Offer Registration Statement") Parent ---------------------------- shall cause Merger Sub to commence an offer (the "Offer") to purchase all of the issued and ---------- outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Stock at a price for each share of not less than Company Common Stock of (1) $10.50 per Share29.60, net to the seller in cash, and (2) a fraction of a share of Parent Common Stock equal to the Exchange Ratio. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i1) the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichshares of Company Common Stock that, together with any Shares the shares of Company Common Stock then owned by Parent or and/or Merger Sub, represents at least ninety (90%) percent two-thirds of the Shares shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii2) the other ----------------- conditions set forth in Annex I hereto. Offeror expressly reserves Merger Sub shall have the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and of or conditions of to the Offer; provided, however, provided that unless (A) the Minimum Condition may not be -------- ------- previously approved by waived or reduced to less than two-thirds of the shares of Company Common Stock outstanding on a fully-diluted basis without the prior written consent of the Company in writing, Offeror will not and (iB) decrease no change may be made that changes the price per Share form of consideration payable in the Offer, (ii) decrease decreases the consideration payable in the Offer, reduces the maximum number of Shares shares of Company Common Stock to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend makes any other term of the Offer in a manner change which is adverse to the holders of the SharesCompany Common Stock. Notwithstanding the foregoing, Offeror may, without the consent of the Company, Merger Sub shall have the right to extend the Offer (i) extend for one or more periods (not in excess of 10 Business Days each) but in no event ending later than the Offer beyond any Termination Date if, at the scheduled expiration date (the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled or extended expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived and 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. The limitations regarding Offer or any period required by applicable law or (iii) for an aggregate period of not more than 10 Business Days beyond the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not latest applicable date that would otherwise be applicable in the event this Agreement is terminated pursuant to Section 8.1(dpermitted under clause (i) or (ii) of this Agreement. Subject sentence, if, as of such date, all of the conditions to the terms and conditions Offer have been satisfied or waived, but the number of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer equals 80% or more, but less than 90%, of the outstanding shares of Company Common Stock on a fully diluted basis. In the event that Offeror becomes obligated Merger Sub is unable to accept for payment, and pay for, pursuant consummate the Offer on the initial scheduled expiration date due to the failure of the conditions to the Offer as soon as practicable after to be satisfied or waived, Parent shall cause Merger Sub to, unless this Agreement is terminated pursuant to Article IX, extend the Offer and set a subsequent scheduled expiration of date, and shall continue to so extend the Offer, subject to compliance with Rule 14e-1(c) under Offer and set subsequent scheduled expiration dates until the Exchange ActTermination Date. Subject to the foregoing and upon the terms and subject to the conditions of the Offer, Parent shall cause Merger Sub to, accept for payment and Sub pay for, as promptly as practicable after the expiration of the Offer, all shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Parent will announce the exact Exchange Ratio with respect to each use its reasonable best efforts to take, or cause share of Company Common Stock that is to be takenexchanged in the Offer by 9:00 a.m., all actions and New York City time, on the second Trading Day immediately preceding the Acceptance Date. Parent will make such announcement by issuing a press release to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferDow Xxxxx News Service.
Appears in 1 contract
The Offer. (a) Provided Subject to the Provisions of this Agreement, provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Article Seven hereof, as promptly as practicable following the date hereofreasonably practicable, but in no any event later than five business days within 10 Business Days, after receiving all Pre-Offer Required Approvals from the initial public announcement of corresponding Governmental Authorities to initiate the Offer, the Purchaser (i) shall commence (within the meaning of Rule 14d-2 under Article 98 of the Mexican Securities Law, as amended and the corresponding legal dispositions of the U.S. Securities Exchange Act of 1934, as amended (including the "Exchange Act"rules and regulations promulgated thereunder, collectively the “Securities Laws”)) a tender public offer (as amended from time to time in accordance with this Agreement, the "“Offer"”) to purchase all up to 100% (one hundred percent) of the issued and outstanding shares of the Company’s common stock, full voting rights, without par value $0.005 per share(the “Common Shares”), regardless whether such shares of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to are represented by (i) the condition that there shall be validly tendered Certificados de Participación Ordinarios (“CPO”) issued by Nacional Financiera, S.N.C. in accordance connection with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares whichNeutral Investment Trust No. 80526 dated October 17, together with any Shares then owned by Parent or Sub2007, represents at least ninety each CPO representing 3 (90%three) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent shares of the Company, (iii) extend American Depositary Shares (“ADS”) evidenced by American Depositary Receipts (“ADR”), each ADR representing 7 (seven) CPOs, (iii) Common Shares certificates or (iv) any other form of security which underlying value are shares of the Company (collectively, the “Company Shares”) at the Offer beyond any scheduled expiration date Price, file all necessary documents with the Comisión Nacional Bancaria y de Valores (the initial scheduled expiration date being 20 business days following commencement of “CNBV”) and the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the "“SEC"”), publish and distribute an Offer to Purchase (the “Offer to Purchase”) or and make all deliveries, mailings and notifications required by the staff thereof applicable Securities Laws (collectively, with the Offer to Purchase, the “Offer Documents”), in connection with the Offer; and (ii) shall consummate the Offer, subject to the Offer. The limitations regarding terms and conditions thereof and the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Recapitalization Agreement (Ventura Capital Privado, S.A. De C.V.)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toMerger Subsidiary shall, as promptly as practicable following after the date hereof, but in no event later than five one business days after the initial public announcement of the Offer, commence day (within the meaning of as defined in Rule 14d-2 14b-1(c)(6) promulgated under the Securities and Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with following the execution of this Agreement, issue a public announcement of the execution of this Agreement and as promptly as practicable thereafter, but in no event later than five business days following such public announcement, commence an offer (the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 .01 per shareshare (the "Shares"), of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 5.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as The initial expiration date (the "Offeror." The obligation Initial Expiration Date") of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be 20 business days following the commencement of the Offer. The Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any the Shares then owned by Parent or Suband Merger Subsidiary, represents at least ninety (90%) percent a majority of the total number of outstanding Shares, assuming the exercise of all outstanding options, rights and convertible securities (if any) and the issuance of all Shares that the Company is obligated to issue (such total number of outstanding on a fully-diluted basis Shares being hereinafter referred to as the "Fully Diluted Shares") (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) to the other conditions set forth in Annex I hereto. Offeror Parent and Merger Subsidiary expressly reserves reserve the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; providedprovided that, howeverwithout the prior written consent of the Company, that unless -------- ------- previously approved by the Company in writing, Offeror will not no change may be made which (i) decrease except as provided in the price per Share payable in next sentence, extends the Offer, (ii) decrease changes the maximum form of consideration to be paid, (iii) decreases the price per Share or the number of Shares to be purchased sought in the Offer, (iiiiv) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the CompanyI, (v) except as provided in changes or waives the next sentenceMinimum Condition, extend the Offer, or (vi) makes any other change the form of consideration payable in to any condition to the Offer or (vii) amend any other term of the Offer set forth in a manner Annex I which is materially adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror Merger Subsidiary may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, Offer any of the conditions to OfferorMerger Subsidiary's obligation to accept for payment, and pay for, purchase Shares (including, with respect pursuant to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be satisfied or waived, until such time as such conditions are satisfied or waived waived, (ii) extend the Offer for a period of not more than 20 business days beyond the Initial Expiration Date, 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, and (iiiii) 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. The limitations regarding Parent and Merger Subsidiary agree that if all of the conditions to Merger Subsidiary's obligation to purchase Shares pursuant to the Offer are not satisfied on any scheduled expiration date of the Offer then, provided that all such conditions are reasonably capable of being satisfied, Merger Subsidiary shall extend the Offer from time to time in increments of at least five business days each until the earliest to occur of (x) the satisfaction or waiver of the Minimum Condition or such other condition, (y) the termination of this Agreement in accordance with its terms and (z) December 1, 1999. Subject to the terms of the Offer in this Agreement and the satisfaction (or waiver to the extent permitted by this Agreement) of the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror Merger Subsidiary shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after the applicable expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Section 9.1 and none of the events set forth in Exhibit A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toand be continuing, as promptly as practicable following and in any event within 7 business days of the date hereof, but in no event later than five business days after the initial public announcement of the Offer, Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and the rules and regulations promulgated thereunder (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 62.00 per Company Common Share, net to the seller in cash. For purposes cash (such price, or the highest of this Article I, the party which makes any price per Company Common Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." Offer Price"). The obligation obligations of Offeror the Purchaser to accept for payment and to pay for any Company Common Shares validly tendered in pursuant to the Offer on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with and not withdrawn prior to the terms final expiration of the Offer prior to the expiration date of the Offer and not withdrawn a that number of Company Common Shares which, together with any the Company Common Shares then beneficially owned by the Parent or Subthe Purchaser or any of their Subsidiaries, represents at least ninety (90%) percent two-thirds of the Company Common Shares then issued and outstanding on a fullyFully-diluted basis Diluted Basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iiiii) the other conditions set forth in Annex I Exhibit A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to waive any such condition (including the Minimum Conditionthis Agreement, provided that no such waiver of the Minimum Condition shall decrease and the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I Exhibit A hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Acquisition Agreement and Agreement and Plan of Merger (Sears Roebuck & Co)
The Offer. (a) Provided that nothing this Agreement shall not have been terminated in accordance with Article VIII and no event shall have occurred that and be continuing that, had the Offer been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs Exhibit A hereto (athe “Offer Conditions”) through (iother than the Minimum Condition and condition (b) of Annex I on Exhibit A hereto), Merger Sub shall, and Parent shall or shall cause Merger Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offer, use commercially reasonable efforts 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"”)) a tender 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 (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all outstanding Common Shares at the Offer Price. The obligations of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Merger Sub, shall be referred and of Parent to as the "Offeror." The obligation of Offeror cause Merger Sub, to accept for payment and to pay for any Common Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction or waiver by Merger Sub of the Offer prior to the expiration date of the Offer Conditions and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions hereof. Merger Sub expressly reserves the 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; provided, howeverexcept that, that unless -------- ------- previously approved by without the Company in writingwritten consent of the Company, Offeror will Merger Sub shall not (i) decrease reduce the price per Share payable in the OfferOffer Price, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer (other than by adding consideration), (iii) reduce the number 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 (vii) amend modify any other Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of the Common Shares. Notwithstanding Either Parent or Merger Sub may, in its sole and absolute discretion and without the foregoingconsent of the Company, Offeror mayincrease the Offer Price, in which case the Offer shall be extended, without the consent of the Company, (i) extend as required by applicable Law. The Company agrees that no Common Shares held by 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, Company or any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined its Subsidiaries will be tendered in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing Subject to this Agreement not having been terminated in accordance with the provisions of Section 7.1 hereof, Lockheed Xxxxxx, acting through a wholly- owned single member Delaware limited liability company (the "OFFER SUBSIDIARY"), shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as promptly as practicable following the date hereofpracticable, but in no event later than five business days after from the initial date of the public announcement of the Offerterms of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended amended, and all rules and regulations promulgated thereunder (the "Exchange ActEXCHANGE ACT")) a tender an offer to purchase for cash (as it may be amended from time to time in accordance with the terms of this Agreement, the "OfferOFFER") up to purchase all the number of shares (collectively, the issued and outstanding shares "SHARES") of COMSAT's common stock, without par value $0.005 per share, of the Company (the "SharesCOMSAT COMMON STOCK"), that is equal to the remainder of (i) 49% of the number of shares of COMSAT Common Stock outstanding at the close of business on the date of purchase pursuant to the Offer minus (ii) the number of shares of ----- COMSAT Common Stock then owned of record by "authorized carriers" or (as defined in the Communications Satellite Act of 1962, as amended, 47 U.S.C. (S)701 et. seq., and all rules and regulations promulgated thereunder (the "SATELLITE ACT")) ("AUTHORIZED CARRIERS"), as evidenced by issuance of shares of Series II COMSAT Common Stock, minus (iii) the number of shares of COMSAT Common Stock with ----- respect to which written demand shall have been made and not withdrawn under Section 29-373 of the District of Columbia Business Corporation Act (the "DCBCA"), at a price of not less than $10.50 45.50 per Share, net to the seller in cashcash (the "OFFER PRICE"). For purposes of this Article I, the party which makes Lockheed Xxxxxx shall extend the Offer, whether Parent for periods of no more than 60 days, until the earlier of (i) the one year anniversary of the date hereof or Sub, (ii) 10 business days after the date on which the last of the Authorized Carrier Conditions (as defined in Exhibit A hereto) shall be referred to as the "Offeror." have been --------- obtained. The obligation of Offeror Lockheed Xxxxxx to accept for payment payment, and to pay for for, any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I heretoExhibit A (any of which may be waived in whole or in part by Lockheed --------- Xxxxxx in its sole discretion), and to the terms and conditions of this Agreement. Offeror Lockheed Xxxxxx expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in modify the terms and conditions of the Offer; provided, howeverexcept that, that unless -------- ------- previously approved by without the Company in writingprior written consent of COMSAT, Offeror will Lockheed Xxxxxx shall not (i) decrease reduce the price per Share payable in number of Shares subject to the Offer, (ii) decrease waive the maximum number of Shares to be purchased Minimum Condition (as defined in the OfferExhibit A hereto), (iii) impose conditions to --------- reduce the Offer in addition to those set forth in Annex I heretoPrice, (iv) change modify or add to the conditions to the Offer set forth in any material respect adverse to the CompanyExhibit A, (v) except as provided in the next sentencethis Section 1.1(a), extend the term of the --------- Offer, (vi) change the form of the consideration payable in the Offer or (vii) amend make any other term of the Offer in a manner modifications that are otherwise materially adverse to the holders of the SharesCOMSAT Common Stock. Notwithstanding the foregoing, Offeror Lockheed Xxxxxx may, without the consent of the CompanyCOMSAT, (iA) extend the term of the Offer beyond any scheduled expiration date of the Offer (but not beyond the initial two year anniversary of the date hereof) if, at any such scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offerdate, any of the conditions to Offeror's Lockheed Xxxxxx'x obligation to accept for payment, and pay for, Shares (including, with respect tendered pursuant to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be satisfied or waived, until such time as such conditions are have been satisfied or waived and (iiB) extend the Offer (but not beyond the two year anniversary of the date hereof) 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 OfferOffer or any other applicable Law (as hereinafter defined). The limitations regarding Upon the terms and subject to the conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror Lockheed Xxxxxx shall accept for payment , and will pay for, all as soon as permitted under the terms of the Offer, Shares validly tendered and not withdrawn pursuant prior to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject . The date and time at which the Offer shall close is referred to compliance with Rule 14e-1(c) under as the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer"OFFER CLOSING TIME".
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub to, as As promptly as practicable following the date hereof, (but in no event later than five business days after the initial public announcement of the Offerexecution hereof), Sub shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash not less than 35,144,833 shares and up to all of the issued and outstanding shares of common stock, par value $0.005 .01 per share, of the Company share (referred to herein as either the "Shares" or "Company Common Stock"), of the Company at a price of not less than $10.50 27.50 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." The obligation Offer Price"), the exact number of Offeror Shares within such range to accept for payment and be determined by Parent in its sole discretion, it being hereby agreed that Parent may change the amount of Shares sought to pay for any Shares tendered be purchased in the Offer within such range at any time prior to consummation of the Offer, provided that Parent complies with the requirements of Rule 14e-1 of the Exchange Act. The Offer shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a Offer, at least 35,144,833 Shares or such other number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent as shall equal 50.1% of the Shares outstanding on a fully-diluted basis as of the expiration of the Offer (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) to the other conditions set forth in Annex I A hereto. Offeror expressly reserves Sub shall, on the right in its sole discretion terms and subject to waive any such condition (including the Minimum Condition, provided that no such prior satisfaction or waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by accept for payment and pay for Shares tendered as soon as practicable after the Company in writing, Offeror will not (i) decrease later of the price per Share payable in the Offer, (ii) decrease the maximum number satisfaction of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer; PROVIDED, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions HOWEVER, that no such payment shall be made until after any calculation of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.proration as required by applicable
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of accordance with Article VIII and the conditions set forth in paragraphs clauses (ac)(i), (ii), (iii) through and (iiv)(1), (iv)(2), (iv)(3) and (iv)(4) of Annex I hereto, Parent Exhibit A hereto shall or shall cause Sub tohave been satisfied, as promptly as practicable following reasonably practicable, and in any event by November 13, 2018 (or such other date as agreed to in writing by Parent and the date hereofCompany), but in no event later than five business days after the initial public announcement of the OfferMerger Sub shall, and Parent shall cause Merger Sub to, commence (within the meaning of Rule 14d-2 14d‑2 under the Securities Exchange Act of 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or . The obligations of Merger Sub, shall be referred and of Parent to as the "Offeror." The obligation of Offeror cause Merger Sub, to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer Minimum Condition (as defined in Exhibit A hereto) and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt satisfaction or waiver by Merger Sub of cash proceeds each of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition Exhibit A hereto (including together with the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six “Offer Conditions”) and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions hereof. Merger Sub expressly reserves the right, in its sole discretion, to (A) increase the Offer Price, (B) waive any Offer Condition other than the Minimum Condition, or (C) modify any of the other terms or conditions of the Offer; provided, howeverexcept that, that unless -------- ------- previously approved otherwise provided by this Agreement, without the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number written consent of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, Merger Sub shall not (v1) except as provided in reduce the next sentence, extend the OfferOffer Price, (vi2) change the form of consideration payable in the Offer (other than by adding consideration), (3) add to the Offer Conditions, (4) reduce the number of Shares subject to the offer, (5) extend the expiration of the Offer except as required or permitted by Section 1.1(b), or (vii6) amend modify any Offer Condition (other than the Minimum Condition) or any term of the Offer (other than the terms that may not be modified pursuant to subsection (C) of this Section 1.1(a)) set forth in this Agreement in a manner adverse to the holders of the Shares. Notwithstanding In addition, the foregoingparties hereby agree that the Minimum Condition may not be amended or waived by either Parent or Merger Sub, Offeror mayon the one hand, without the consent of or the Company, (i) extend on 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerother hand.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (aii)(a) through - (iii)(g) of Annex I hereto, Parent shall or shall cause Sub to, then as promptly as practicable following after the date hereof, but hereof (and in no any event later than five within eight (8) business days after the initial public announcement of the Offerdate of this Agreement), Merger Sub shall (A) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase any and all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Stock at a price of not less than $10.50 per ShareShare equal to the Per Share Amount, net to the seller in cash. For purposes of this Article I, without interest and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the party which makes "Offer Documents") with the Offer, whether Parent or Sub, shall be referred to as Securities and Exchange Commission (the "Offeror." SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer Documents. The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn Expiration Date (as hereinafter defined) a number of Shares whichthat, together with any the Shares then owned by Parent and/or Merger Sub or Subany other subsidiary of Parent, represents at least ninety (90%) percent a majority of the Shares outstanding on a fullyFully-diluted basis Diluted Basis (as hereinafter defined) (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) to the other conditions set forth in Annex I hereto. Offeror Merger Sub expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and of or conditions to the Offer, provided that without the prior written consent of the Offer; providedCompany, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the OfferMinimum Condition may not be waived, (ii) decrease the maximum number condition to the Offer that the applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of Shares to 1976, as amended (the "HSR Act") or under any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be purchased in the Offerwaived, (iii) impose no change may be made that changes the form of consideration to be paid, decreases the Per Share Amount or the number of Shares sought in the Offer or imposes conditions to the Offer in addition to those set forth in Annex I hereto, and (iv) no other change the conditions may be made to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror mayexcept as otherwise provided in this Section 1.01(a), without the consent of the Company, Merger Sub shall have the right to extend the Offer, provided that such extension does not extend beyond the later of (x) July 31, 2003 and (y) the date that is 30 days after the date that the Company has complied with its obligations under Section 6.03 (the "Outside Date") (i) extend from time to time if, at 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offeror extended Expiration Date, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived and 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 OfferOffer or any period required by applicable law. The limitations regarding Offer shall remain open until 12:00 midnight on the terms and conditions of date that is twenty (20) business days after the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions commencement of the Offer and this Agreement(the "Expiration Date"), Offeror unless Merger Sub shall accept have extended the period of time for payment which the Offer is open pursuant to, and pay forin accordance with, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, this Agreement or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.as may be
Appears in 1 contract
Samples: Agreement and Plan of Merger (Elite Information Group Inc)
The Offer. (a) Provided Subject to the provisions of this Agreement and provided that nothing shall have occurred that would result in a failure to satisfy any none of the conditions set forth identified in paragraphs subparagraphs (a) through - (i) of in Annex I heretohereto shall ------- have occurred and be continuing, Parent shall or shall cause Sub the Purchaser to, as promptly as reasonably practicable following after the date hereof, but in no event later than five (5) business days after following the initial public announcement of the Purchaser's intention to commence the Offer, commence (within the meaning of Rule 14d-2 14d-2(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase Offer for all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than ------------- $10.50 10.68 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror the Purchaser to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) to such number of Shares, when added to the condition that there number of Shares already owned by Parent, the Purchaser or any direct or indirect wholly owned subsidiary of Parent, as shall be constitute two-thirds of the Company's Fully Diluted Shares (as defined in Section 4.2) being validly tendered in accordance with the terms of the Offer prior to the expiration date or termination of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Share Condition") and ----------------------- (iiiii) to the other conditions to the Offer set forth in Annex I. The Purchaser ------- may at anytime 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 (the "Tendered Shares"), but no such --------------- assignment shall relieve the Purchaser of its obligations hereunder. The Purchaser expressly reserves the right to waive any of the conditions to the Offer set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in modify the terms and conditions of the Offer; ------- provided, however, that unless that, without the prior written consent of the Company, the -------- ------- previously approved by Purchaser shall not amend or modify the Company in writing, Offeror will not terms of the Offer to (i) decrease reduce the cash price per Share payable in to be paid pursuant to the Offer, (ii) decrease reduce the maximum number of Shares as to be purchased in which the OfferOffer is made, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable to be paid in the Offer Offer, (iv) modify or waive the Minimum Share Condition, or (viiv) amend any impose conditions to its obligation to accept for payment or pay for the Tendered Shares other term of than those set forth in Annex I. Subject to the terms and ------- conditions thereof, the Offer in a manner adverse to shall expire at midnight, New York City time, on the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the initial scheduled expiration date being that shall be 20 business days following commencement of after the date the Offer on which shall be commenced. The Offer may not be extended without the Company's prior written consent; provided, however, that the Purchaser may (x) from time to time extend -------- ------- (and re-extend) the Offer) for a period not to extend beyond July 31, 1998, if at any the scheduled expiration date of the Offer, Offer any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are shall be satisfied or waived and waived; (iiy) 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. The limitations regarding ; or (z) extend (and re-extend) the terms and conditions Offer for any reason 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 (x) or (y) above if on such expiration date there shall not have been tendered at least that number of Shares necessary to permit the Merger to be effected without a meeting of the Offer, as set forth Company's stockholders in accordance with the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferMBCL.
Appears in 1 contract
Samples: Agreement and Plan of Merger (CSW Acquisition Corp)
The Offer. (a) (i) Provided that nothing this Agreement shall not have been terminated in accordance with Section 8.01 and that none of the events set forth in clause (iii) of Exhibit A hereto shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoor be existing, Purchaser shall, and Parent shall or shall cause Sub Purchaser to, as promptly as practicable following the date hereof, (but in no event later than five seven business days after following the initial public announcement of the Offer, terms of this Agreement) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange ActEXCHANGE ACT")) a tender an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stockstock of the Company, par value $0.005 .01 per share, of the Company share (the "Shares" or "Common StockSHARES"), at a price (such price, or any higher price as may be paid in the Offer, the "OFFER PRICE") of not less than $10.50 49.00 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as cash (the "Offeror." OFFER"). The obligation of Offeror Purchaser to consummate the Offer and to accept for payment and to pay for any Shares tendered in the Offer pursuant thereto shall be subject to only to those conditions set forth in Exhibit A hereto (ithe "OFFER CONDITIONS"), any of which may be waived by Purchaser in its sole discretion; provided that the Minimum Tender Condition (as defined in Exhibit A) may not be waived without the condition that there shall be validly tendered in accordance with the terms prior written consent of the Offer prior to the Company. The initial expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent shall be the twentieth business day following the commencement of the Shares outstanding on a fully-diluted basis Offer (determined in accordance with Rule 14d-1(e)(6) under the "Minimum Condition"Exchange Act), (ii) . Purchaser expressly reserves the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient right to consummate the transactions contemplated hereby pursuant to modify the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and Offer, except that, without the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver prior written consent of the Minimum Condition Company, Purchaser shall not (A) decrease or change the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions form of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share consideration payable in the Offer, (iiB) decrease the maximum number of Shares sought pursuant to be purchased in the Offer, (iiiC) impose additional conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (viD) make any other change the form of consideration payable in the Offer terms or (vii) amend any other term conditions of the Offer in a manner that is adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent it being agreed that neither a waiver by Purchaser of any of the CompanyOffer Conditions (other than the Minimum Tender Condition) in whole or in part at any time in its discretion, nor the extension of the Offer as permitted below, shall be deemed to be adverse to the holders of Shares, or (iE) except as provided below, 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the OfferExpiration Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (National Discount Brokers Group Inc)
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer referred to below been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I A hereto, Parent shall or shall cause Sub to, as promptly as practicable following after the date hereof, hereof (but in no event later than five business days after from the initial public announcement of the Offerexecution hereof), the Purchaser shall, and Parent shall cause the Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ), an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash any and all of the issued and outstanding shares of common stock(i) Common Stock, par value $0.005 0.01 per share, of the Company (referred to herein as either the "Common Shares" or "Company Common Stock"), ) at a price of not less than $10.50 35.00 per Common Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Common Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror.Common Offer Price," provided that Purchaser shall not be required to increase the Common Offer Price) and (ii) Class A Common Stock, par value $0.01 per share, of the Company (referred to herein as either the "Class A Shares" or "Company Class A Common Stock" and, together with the Common Shares, as the "Shares" or "Company Stock," which references include for all purposes the related Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights Agreement between the Company and Harris Trust and Savings Baxx, xxted as of December 22, 1997) at a price of $32.965 per Class A Share, net to the seller in cash (such price, or such higher price per Class A Share as may be paid in the Offer, being referred to herein as the "Class A Offer Price," provided that Purchaser shall not be required to increase the Class A Offer Price, and, together with the Common Offer Price, as the "Offer Price"). The obligation Purchaser shall, on the terms and subject to the prior satisfaction or waiver of Offeror the conditions of the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law; provided that, if the number of Shares that have been physically tendered and not withdrawn are more than 50% of the Shares outstanding on a fully diluted basis but less than 90% of the outstanding shares of each class of capital stock of the Company, the Purchaser may extend the Offer for up to 20 business days from the date that all conditions to the Offer shall first have been satisfied or waived. The obligations of the Purchaser to accept for payment and to pay for any and all Shares validly tendered in on or prior to the expiration of the Offer and not withdrawn shall be subject only to (i) the condition that there shall be being validly tendered in accordance with the terms of the Offer and not withdrawn prior to the expiration date of the Offer and not withdrawn a Offer, that number of Shares which, together with any Shares then beneficially owned by Parent or Subthe Purchaser, represents represent at least ninety (90%) percent a majority of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I A hereto. Offeror expressly reserves The Offer shall be made by means of an offer to purchase (the right "Offer to Purchase") containing the terms set forth in its sole discretion to this Agreement, the Minimum Condition and the other conditions set forth in Annex A hereto. The Purchaser shall not amend or waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition Offer Price or decrease the number of Shares sought, or impose any additional conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a any manner adverse to the holders of the SharesShares or extend the expiration date of the Offer (except for such extensions as are contemplated below), in each case without the prior written consent of the Company (such consent to be authorized by the Board of Directors of the Company or a duly authorized committee thereof). Notwithstanding the foregoing, Offeror maythe Purchaser shall, and Parent agrees to cause the Purchaser to, extend the Offer from time to time until the date that all conditions to the Offer have been satisfied, subject to the provisions of Section 7.1(b)(i) hereof if, and to the extent that, at the initial expiration date of the Offer, or any extension thereof, all conditions to the Offer have not been satisfied or waived. In addition, the Offer Price may be increased and the Offer may be extended to the extent required by law in connection with such increase, in each case without the consent of the Company. In the event of any increase in the Common Offer Price, (i) extend the Class A 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for paymentPrice will be increased by an equal amount, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to any increase in the terms and conditions of Class A Offer Price, the Common Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub Price will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerincreased by an equal amount.
Appears in 1 contract
The Offer. 1.1 (a) Provided Subject to the provisions of this Agreement, and provided this Agreement shall not have been terminated in accordance with Section 10.1 hereof and that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in is paragraphs (a) through and (ib) of Annex I hereto, Parent shall or shall cause Merger Sub toshall, as promptly as practicable following after the date hereof, but in no event later than five business days after following the initial date of public announcement of the Offerexecution of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act1934 ACT")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Offer at a price of not less than $10.50 2.75 per Share, net to the seller in cash, without interest and less any required transfer and withholding taxes. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered (and not withdrawn) in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn a Offer, at least that number of Shares which(not including Shares tendered by Parent, together with Merger Sub or any affiliate of Parent), which is the smallest number of Shares that represents a majority of the outstanding Shares (excluding for purposes of this calculation all Shares owned by Parent, Merger Sub or any affiliate of Parent and any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined held in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby Intek employee stock plans that cannot be tendered pursuant to the terms of the Commitments (as defined in said Section 4.2(d)those plans) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing ConditionMINIMUM CONDITION") ), and (iii) to the other conditions set forth herein and in Annex I hereto. Offeror Notwithstanding the foregoing, Merger Sub expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; providedPROVIDED, howeverHOWEVER, that unless -------- ------- previously approved by without the Company prior written consent of the Company, Merger Sub shall not waive the Minimum Condition or make any change in writing, Offeror will not (i) decrease the Offer that changes the form of the Offer or of the consideration or decreases the price per Share payable share, except as provided in the OfferSection 2.7 hereof, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose or that imposes conditions to the Offer in addition to those set forth herein and in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner that is otherwise materially adverse to the holders of Shares (other than Parent and its affiliates). The Offer shall expire at midnight on the Sharesexpiration date. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) extend the Offer beyond any scheduled expiration date (the The initial scheduled expiration date being of the Offer shall be the date that is 20 business days following the date of commencement of the Offer) for a period not to extend beyond July 31, 1998, if at . If on any scheduled expiration date of the Offer, any of the Offer all conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, Merger Sub shall extend the Offer from time to time until such time as such conditions are have been satisfied or waived waived; PROVIDED that Merger Sub shall have no obligation to extend the Offer beyond the date 60 days after commencement of the Offer, nor shall it have the right to extend the Offer beyond the date 60 days after commencement of the Offer without the prior written consent of the Company (except pursuant to the next sentence). If on any scheduled expiration date of the Offer all conditions to the Offer (including the Minimum Condition) shall have been satisfied but the sum of (i) the number of Shares tendered (and not withdrawn) pursuant to the Offer plus (ii) the number of Shares held by Parent, Merger Sub or any other affiliate of Parent that have not been tendered pursuant to the Offer, including Shares issuable to any of them upon conversion of Series A Preferred Shares and convertible debt of the Company held by any of them, represent less than 90% of the outstanding Shares on a fully-diluted basis (except that unexercised Options shall not be treated as outstanding for this purpose), Merger Sub shall also have the right to extend the Offer for any period required by any rule, regulation, interpretation or position from time to time without the consent of the Securities and Exchange Commission Company (for not more than an aggregate of 10 business days) in order to permit Merger Sub to solicit the "SEC") or the staff thereof applicable tender of additional Shares pursuant to the Offer. The limitations regarding Notwithstanding anything to the contrary set forth in this Agreement or in Annex I, if the Offer is extended in accordance with the foregoing following satisfaction of the Minimum Condition, the Minimum Condition shall be deemed to remain satisfied regardless of any withdrawal of previously tendered shares during the extension period. Subject to the foregoing and to the terms and conditions of the Offer, Merger Sub agrees to pay, as set forth in promptly as reasonably practicable after the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions expiration of the Offer and this AgreementOffer, Offeror shall accept for payment , and pay for, all Shares validly properly tendered and not withdrawn pursuant to the Offer that Offeror becomes Merger Sub is obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerpurchase.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that would result Subject to the provisions of this Agreement and this Agreement not having been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 7.1, as promptly as practicable following after the date hereof, but in no event later than five business days after ten (10) Business Days following the initial public announcement of the Offerexecution of this Agreement in accordance with the terms of this Agreement, Parent and Purchaser shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act")) the Offer to exchange all of the outstanding shares of Company Common Stock for the right to receive from Purchaser, for each Share validly tendered and not withdrawn, the Offer Price payable in an amount of cash (the "Cash Consideration") and a tender offer number of validly issued, fully paid and nonassessable shares of Parent Common Stock (as amended from time to time the "Stock Consideration") in each case determined in accordance with this AgreementAnnex II hereof (such cash amount and number of shares of Parent Common Stock, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common StockOffer Consideration"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation Purchaser to accept for payment, and pay for, Shares (including, with respect tendered pursuant to the Financing Offer shall be subject only to the conditions set forth in Annex I hereto (the "Offer Conditions") (any or all of which may be waived in whole or in part by Purchaser in its sole discretion other than the Minimum Condition, the consummation of the sale of the Senior Notes (as defined below, or any Parent Stock Condition, as defined in Section 4.2(d)Annex I hereto) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of this Agreement. The initial scheduled expiration date of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to be twenty (20) Business Days after the Offer that Offeror becomes obligated to accept for paymentis commenced. As used herein, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.term "
Appears in 1 contract
The Offer. (a) Provided that nothing that: (x) this Agreement shall not have been terminated in accordance with Article V and (y) the Company shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub tocomplied with its obligations under Section 1.3, as promptly as practicable following reasonably practicable, and in any event within 10 days of the date hereofof this Agreement, but in no event later than five business days after the initial public announcement of the Offer, Parent shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (including the "rules and regulations promulgated thereunder, the “Exchange Act"”)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether . The obligations of Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to the terms and conditions of this Agreement, including (i) the condition that there shall be validly tendered in accordance with the terms satisfaction of the Offer prior to the expiration date of the Offer Minimum Condition (as defined in 0 hereto) and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt satisfaction or waiver by Parent of cash proceeds each of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto0 hereto (together with the Minimum Condition, the “Offer Conditions”). Offeror Parent expressly reserves the right in its sole discretion to (A) increase the Offer Price, (B) waive any such condition Offer Condition (including other than the Minimum Condition, provided that no such waiver 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 Minimum Condition shall decrease number of Shares issued and outstanding, or the Minimum Condition to less than sixty-six and two-thirds Antitrust Condition) or (66 2/3%C) percent), to increase modify any of the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and or conditions of the Offer; providedOffer not inconsistent with the terms of this Agreement, howeverexcept that, that unless -------- ------- previously approved by without the Company in writing, Offeror will not (i) decrease the price per Share payable in the Offer, (ii) decrease the maximum number consent of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, Parent shall not (v1) except as provided in reduce the next sentence, extend the OfferOffer Price, (vi2) change the form of consideration payable in the Offer (other than by adding cash consideration), (3) reduce the number of Shares sought in the Offer or (vii4) add to the Offer Conditions, (5) amend or modify any other term of the Offer Conditions in a manner adverse that would, individually or in the aggregate, reasonably be expected to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, prevent or materially delay the consummation of the sale Offer or prevent, materially delay or impair the ability of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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 Parent to the Offer. The limitations regarding the terms and conditions of consummate the Offer, as set forth in or (6) change or waive the second preceding and Minimum Condition, if the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to number of Shares, together with the Offer that Offeror becomes obligated to accept for paymentShares, and pay forif any, pursuant to the Offer as soon as practicable after expiration then owned by Parent or any of its Subsidiaries, would represent at least one Share less than 66.67% of the Offernumber of Shares issued and outstanding, subject to compliance with 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 14e-1(c) 14d-11 promulgated under the Exchange Act. Subject 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 terms and conditions of the OfferAcceptance Time (collectively, Parent and Sub “Excluded Shares”) will each use its reasonable best efforts be tendered pursuant to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result been terminated in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toaccordance with Section 7.1, as promptly as practicable following the date hereof, (but in no event later than five seven (7) business days after the initial public announcement of the Offerexecution hereof), the Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender ) an offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash all of the issued Shares (and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), associated Rights) at a price of not less than $10.50 22.00 per Share, net to the seller in cash. For purposes of this Article Icash (such price, the party which makes or such higher price per Share as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be Price"), subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I A hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless Parent may -------- ------- previously approved by designate another wholly owned, direct or indirect subsidiary of Parent as the Company in writing, Offeror will not bidder (iwithin the meaning of Rule 14d-1(g) decrease under the price per Share payable Exchange Act) in the Offer, in which case reference herein to Purchaser shall be deemed to apply to such subsidiary, as appropriate. The Company shall not tender Shares held by it or by any of its subsidiaries pursuant to the Offer. The Purchaser shall, and Parent shall cause the Purchaser to, on the terms and subject to the prior satisfaction or waiver of the conditions to the Offer, accept for payment and pay for Shares tendered as soon as it is legally permitted to do so under applicable law. The Offer shall be made by means of an offer to purchase (iithe "Offer to Purchase") containing the terms set forth in this Agreement and only the conditions set forth in Annex A hereto and providing for an initial expiration date (the "Expiration Date") of twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) from the date of commencement. The Purchaser shall not, and Parent shall cause the Purchaser not to, decrease the maximum Offer Price or decrease the number of Shares sought, amend the conditions to be purchased the Offer set forth in the Offer, (iii) Annex A or impose conditions to the Offer in addition to those set forth in Annex I heretoA, (iv) change without the conditions to the Offer in any material respect adverse to prior written consent of the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror The Purchaser may, without the consent of the Company, (iA) extend the Offer beyond for the shortest time periods which it reasonably believes are necessary, but in no event more than an additional forty (40) days, in one or more periods of not more than ten (10) business days, if Parent and Purchaser are not in material breach of this Agreement and if any scheduled expiration date condition to the Offer is not satisfied or waived and such condition is reasonably capable of being satisfied and (B) if, on the initial scheduled expiration date being 20 Expiration Date, the Shares validly tendered and not withdrawn pursuant to the Offer equal at least seventy-five percent (75%) of the outstanding Shares but less than ninety percent (90%) of the outstanding Shares (on a fully diluted basis, as such term is defined in Annex A), extend the Offer on one occasion for up to ten (10) business days following commencement notwithstanding that all the conditions to the Offer have been satisfied so long as Purchaser irrevocably waives the satisfaction of the Offer) for a period not to extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for paymentthe Offer (other than in the case of paragraph (a) of Annex A hereto the occurrence of any statute, and pay forrule, Shares (includingregulation, with respect to the Financing Conditionjudgment, order or preliminary or permanent injunction making illegal or prohibiting the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)Offer) shall that subsequently may not be satisfied or waivedduring any such extension of the Offer. In addition, until such time as such conditions are satisfied or waived and (ii) extend the Offer for any period Price may be increased and the Offer may be extended to the extent required by any rulelaw in connection with such increase, regulation, interpretation or position in each case without the consent of the Company. On the date the Offer is commenced, Parent and Purchaser shall file with the United States Securities and Exchange Commission (the "SEC") or the staff thereof applicable a Tender Offer Statement on Schedule TO with respect to the OfferOffer (together with all amendments and supplements thereto and including the exhibits thereto, the "Schedule TO"). The limitations regarding Schedule TO shall contain or shall incorporate by reference the terms Offer to Purchase and conditions a form of letter of transmittal and summary advertisement (the OfferSchedule TO, as set forth the Offer to Purchase and related letter of transmittal and related summary advertisement, together with any amendments and supplements thereto, collectively the "Offer Documents"). The Offer Documents shall comply in all material respects with the second preceding provisions of applicable federal securities laws and, on the date filed with the SEC and on the immediately preceding sentencesdate 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 applicable stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by Parent or the Purchaser with respect to information supplied by the Company for inclusion in the event this Agreement is terminated pursuant Offer Documents. Each of Parent and Purchaser shall further take all steps necessary to Section 8.1(d) cause the Offer Documents to be filed with the SEC and to be disseminated to holders of this Agreement. Subject Shares, in each case as and to the terms extent required by applicable federal securities laws. Each of Parent and conditions of Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by it for use in the Offer Documents if and this Agreementto the extent that it shall have become false and misleading in any material respect and the Purchaser further shall take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of Shares, Offeror in each case as and to the extent required by applicable federal securities laws. The Company and its counsel shall accept for payment be given an opportunity to review and comment upon the Schedule TO (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, Parent shall, and pay forshall cause the Purchaser to, all Shares validly tendered provide the Company and not withdrawn pursuant its counsel in writing with any comments that Parent, Purchaser or their counsel may receive from the SEC or its staff with respect to the Offer that Offeror becomes obligated to accept for paymentDocuments promptly after receipt of such comments and with copies of any written responses and telephonic notification of any verbal responses by Parent, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange ActPurchaser or their counsel. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, shall provide or cause to be taken, provided to Purchaser all actions and of the funds necessary to do, or cause purchase any Shares that Purchaser becomes obligated to be done, all things necessary, proper or advisable under applicable laws and regulations purchase pursuant to consummate the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Berkshire Hathaway Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toMerger Subsidiary shall, as promptly as practicable following after the date hereof, but in no event later than five business days after following the initial public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, commence an offer (the "Offer") to purchase all of the issued and outstanding shares (the "Shares") of common stock, $0.01 par value $0.005 per share, of the Company (the "Shares" or "Common Stock")) and the associated rights to purchase Shares (the "Rights") issued pursuant to the Rights Agreement between the Company and Harris Trust and Savings Bank, as Rights Agent, dated as of Nxxxxxxr 23, 1994 (the "Rights Agreement") at a price of not less than $10.50 20.50 per ShareShare (and associated Right), net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there a number of Shares which, together with the Shares then owned by Buyer, represents at least a majority of the Shares outstanding on a fully diluted basis shall be validly tendered in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) to the other conditions set forth in Annex I hereto. Offeror expressly reserves Without the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver consent of the Minimum Condition Company, Merger Subsidiary shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes in the terms and conditions of the Offer; provided, however, that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease change the price per Share payable in the Offerform of consideration to be paid, (ii) decrease the maximum price per Share, (iii) decrease the number of Shares to be purchased sought in the Offer, (iiiiv) waive the Minimum Condition, (v) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, or (vi) change otherwise amend the form of consideration payable in the Offer or (vii) amend any other term terms and conditions of the Offer in a manner adverse to the holders stockholders of the SharesCompany. Notwithstanding the foregoing, Offeror Merger Subsidiary may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled or extended expiration date of the Offer, Offer any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer Conditions shall not be satisfied or and waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer 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 OfferOffer or any period required by applicable law and (iii) extend the Offer on one or more occasions for an aggregate period of not more than 10 business days beyond the latest expiration date that would otherwise be permitted under clause (i) or (ii) of this sentence, if on such expiration date there shall not have been tendered at least 90% of the outstanding Shares. Buyer and Merger Subsidiary further agree that in the event of the failure of one or more of the conditions to the Offer to be satisfied or waived on any date on which the Offer would otherwise have expired, Merger Subsidiary shall, if such condition could reasonably be expected to be satisfied, extend the Offer for a reasonable period time, provided that Merger Subsidiary shall not be required to extend the Offer beyond October 31, 1998. The limitations regarding initial expiration date of the terms and conditions Offer shall be 20 business days following the commencement of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to On the terms and conditions of the Offer and this Agreementsubject to the foregoing, Offeror Merger Subsidiary shall accept pay for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance in accordance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerlaw.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Apb Acquisition Corp)
The Offer. (a) Provided that nothing this Agreement shall not have occurred that would result in a failure been terminated pursuant to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I heretoSection 9.1 hereof, Parent shall or shall cause Sub to, as promptly as practicable following the date hereof, but in no event later than five business days after the initial public announcement of the Offerterms of this Agreement (which public announcement shall occur no later than the first Business Day following the execution of this Agreement), not later than August 21, 2000, Purchaser shall, and Parent shall cause Purchaser to, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "OfferOFFER") to purchase any and all of the issued and outstanding shares of common stock, par value $0.005 per share, of Company Common Stock outstanding (including the Company (the "Shares" or "Common Stock"), related Rights) at a price of not less than $10.50 U.S.$11.00 per Shareshare, net to the seller in cash. For purposes cash (such price, or such higher price pershare of this Article I, the party which makes Company Common Stock as may be paid in the Offer, whether Parent or Sub, shall be being referred to herein as the "Offeror." OFFER PRICE"). The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichshares of Company Common Stock that, together with any Shares the shares of Company Common Stock then owned by Parent or Suband/or Purchaser, represents at least ninety (90%) percent a majority of the Shares shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing ConditionMINIMUM CONDITION") and (iii) to the other conditions set forth in Annex I hereto. Offeror The Offer shall be made by means of an offer to purchase (the "OFFER TO PURCHASE") and the related letter of transmittal, each in form reasonably satisfactory to the Company, containing the terms set forth in this Agreement and the conditions set forth in Annex I. Purchaser expressly reserves the right in its sole discretion right, subject to compliance with the Exchange Act, to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and of or conditions of to the Offer; provided, however, PROVIDED that unless -------- ------- previously approved by the Company in writing, Offeror will not (i) decrease the price per Share payable Minimum Condition may be waived only with the prior written consent of the Company and (ii) no change may be made that changes the form of consideration to be paid, decreases the Offer Price, decreases the number of shares of Company Common Stock sought in the Offer, (ii) decrease the maximum number of Shares adds to be purchased or modifies, in the Offer, (iii) impose conditions a manner adverse to the Offer in addition to those set forth in Annex I heretostockholders of the Company, (iv) change the conditions to the Offer set forth in any material respect adverse to the CompanyAnnex I, or (v) except as provided in the next sentence, extend ) changes the expiration date of the Offer, (vi) change without the form of consideration payable in the Offer or (vii) amend any other term prior written consent of the Offer in a manner adverse to the holders of the SharesCompany. Notwithstanding the foregoing, Offeror may, without Without the consent of the Company, Purchaser shall have the right to extend the expiration date of the Offer (which shall initially be 20 Business Days from the commencement date of the Offer), (i) extend for up to five additional Business Days, (ii) from time to time thereafter if, at 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 extend beyond July 31, 1998, if at any scheduled or extended expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived and waived, (iiiii) 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 any period required by applicable law, or (iv) for up to 10 additional Business Days, if, immediately prior to the scheduled or extended expiration date of the Offer, the Company Common Stock tendered and not withdrawn pursuant to the Offer constitute more than 80% and less than 90% of the outstanding Company Common Stock, notwithstanding that all conditions to the Offer are satisfied as of such expiration date of the Offer. The limitations regarding If any of the conditions to the Offer is not satisfied or waived on any scheduled or extended expiration date of the Offer, Purchaser shall, and Parent shall cause Purchaser to, extend the Offer, if such condition or conditions could reasonably be expected to be satisfied, from time to time until such conditions are satisfied or waived; PROVIDED that Purchaser shall not be required to extend the Offer beyond November 15, 2000. Subject to the foregoing and upon the terms and subject to the conditions of the Offer, as set forth in the second preceding Purchaser shall, and the immediately preceding sentencesParent shall cause it to, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, as promptly as practicable after the expiration of the Offer, all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
The Offer. (a) Provided that nothing (i) this Agreement shall not have been terminated in accordance with Section 7.1 and (ii) no event set forth in Annex A hereto shall have occurred that would result in a failure to satisfy any of and be continuing (unless such event shall have been waived by Parent or the conditions set forth in paragraphs (a) through (i) of Annex I heretoCompany, Parent shall or shall cause Sub toas applicable), as promptly as practicable following the effective date hereof, but in no event later than five business days after the initial public announcement of the Offer, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended Registration Statement referred to in Section 1.1(d) below (the "Exchange ActEFFECTIVE DATE")) a tender offer (as amended from time to time in accordance with this Agreement, Parent shall commence the "Offer") to purchase Offer for any and all of the issued and outstanding Shares at the various Exchange Ratios contemplated by Section 1.1(b) below. The obligation of Parent to first issue shares of common stock, par value $0.005 per share, of Parent Common Stock in exchange for Shares pursuant to the Company Offer (the "Shares" or FIRST CLOSING"Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer ) shall be subject only to (i) the condition that there valid acceptances of the Offer (and not, where permitted, withdrawn) by holders of at least ninety percent (90%) in nominal value of each of the issued B Preferred Shares, the issued A Ordinary Shares and the issued Ordinary Shares to which the Offer relates (the "MINIMUM CONDITION") (and the expression "Offer" shall be validly tendered construed in accordance with section 428 of the United Kingdom Companies Act 1985 (the "COMPANIES ACT")), and (ii) the satisfaction or waiver (in accordance with the terms of the Offer prior to the expiration date of the Offer and not withdrawn a number of Shares which, together with any Shares then owned by Parent or Sub, represents at least ninety this Section 1.1 (90%) percent of the Shares outstanding on a fully-diluted basis (the "Minimum Condition"a), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition A. Parent shall decrease the Minimum Condition to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to not make any other changes in the terms and conditions of the Offer; providedOffer without the prior written approval of the Company. It is agreed that the conditions set forth in Section 1 of Annex A are for the sole benefit of Parent and may be waived by Parent (and only by Parent), howeverin whole or in part at any time and from time to time, in its sole discretion. It is agreed that unless -------- ------- previously approved the conditions set forth in Section 2 of Annex A are for the sole benefit of the Company and may be waived by the Company (and only by the Company), in writingwhole or in part at any time and from time to time, Offeror will not (i) decrease in its sole discretion. To evidence the price per Share payable in satisfaction of the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Section 2 of Annex I heretoA, the Company shall deliver to Parent on the First Closing Date (ivas defined below) change a certificate, executed by the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent Chief Executive Officer of the Company, (i) extend indicating 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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of Company's concurrence that the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined set forth in Section 4.2(d)) 2 of Annex A shall have been satisfied. Parent shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (ii) extend the Offer permitted to issue Parent Common Stock in exchange 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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated until after it has received the certificate described in the preceding sentence from the Company. The failure by Parent or the Company, as the case may be, at any time to accept for paymentexercise any of the foregoing rights shall not be deemed a waiver of any such right, and pay for, pursuant each such right shall be deemed an ongoing right that may be asserted at any time and from time to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offertime.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer been commenced, would result in give rise to a failure right to satisfy terminate the Offer pursuant to any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toI, as promptly as practicable following after the date hereof, but hereof (and in any event no event later than five business days ten (10) Business Days after the initial public announcement Company satisfies its obligations in the third sentence of the OfferSection 1.2(a)), 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"Act “)) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), at a price of not less than $10.50 per Share, net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as . The Offer and the "Offeror." The obligation of Offeror Merger Sub to, and of Parent to cause Merger Sub to, accept for payment and to pay for any Shares tendered in pursuant to the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer, prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn, a number of Shares that, together with the Shares then directly or indirectly owned by Parent, represents at least a majority of the sum of (i) the total number of Shares outstanding immediately prior to the expiration date of the Offer (as it may be extended in accordance with Section 1.1(b)) and not withdrawn (ii) a number of Shares which, together with any Shares then owned determined by Parent or Sub, represents at least ninety (90%) percent up to a maximum of the total number of Shares outstanding on a fullyissuable upon the exercise or conversion of all options, warrants, rights and convertible securities (if any) that will be vested by the Outside Date (such sum being the “Fully-diluted basis Diluted Shares “) (the "“Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition"Condition “) and (iii) to the other conditions set forth in Annex I hereto(together with the Minimum Condition, the “Offer Conditions “). Offeror Merger Sub expressly reserves the right in its sole discretion (but shall not be obligated) to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and of or conditions of to the Offer; provided, howeverthat without the prior written consent of the Company, that unless -------- ------- previously approved by the Company in writing, Offeror will Merger Sub shall not (i) decrease reduce the price per Share payable in the OfferOffer Price, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer (other than adding consideration), (iii) reduce the number of Shares subject to the Offer, (iv) waive or change the Minimum Condition or the Termination Condition, (v) add to the Offer Conditions, (vi) extend the expiration of the Offer except as required or permitted by Section 1.1(b) or (vii) amend modify any other Offer Condition or any term of the Offer set forth in this Agreement in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger (O Reilly Automotive Inc)
The Offer. (a) Provided that nothing shall have occurred that would result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I hereto, Parent shall or shall cause Sub toBuyer, through Merger Subsidiary, shall, as promptly as practicable following after the date hereof, but in no event later than five business days after following the initial public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, commence the "Offer") Offer to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Shares at a price of not less than $10.50 35.00 per ShareShare ("Offer Price"), net to the seller in cash, subject to any amounts required to be withheld under applicable federal, state, local or foreign income tax laws and regulations. For purposes The consummation of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered and not withdrawn, in accordance with the terms of the Offer and prior to the expiration date of the Offer and not withdrawn Offer, a number of Shares which, together with any Shares then owned by Parent or Sub, which represents at least ninety (90%) percent two-thirds of the Shares outstanding on a fully-fully diluted basis (the "Minimum Condition"), and (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I hereto. Offeror Buyer expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease or any of the Minimum Condition other conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the OfferOffer (other than extending the Offer except as expressly provided below in this Section 1.01(a)); provided, however, provided that unless -------- ------- previously approved by the Company in writing, Offeror will not no change may be made which (i) decrease changes the price per Share payable form of consideration to be paid or decreases the Offer Price or the number of Shares sought in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (viiiii) amend any other term of the Offer in a manner is materially adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent of the Company, (i) Buyer shall extend the Offer beyond at any scheduled expiration date time up to the Outside Termination Date (the initial scheduled expiration date being 20 business days following commencement of the Offeras such term is defined in Section 10.01(iv)) for a period one or more periods of not to extend beyond July 31, 1998more than ten business days, if at any scheduled the initial expiration date of the Offer, or any of extension thereof, the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect condition to the Financing ConditionOffer requiring the expiration or termination of any applicable waiting periods under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, the consummation of the sale of the Senior Notes as amended (as defined in Section 4.2(d"HSR Act")) shall , is not be satisfied or waived, until such time as such conditions are satisfied or waived and (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 Offersatisfied. The limitations regarding the terms and conditions of the Offer, Except as set forth in the second preceding sentence and the immediately preceding sentencesfollowing sentence or as otherwise may be required by law, Buyer shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(deither (i) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment payment, and pay fornot later than 5:00 p.m. New York time on December 31, 1995 all Shares validly tendered and not withdrawn pursuant on or prior to such date, or (ii) cause the Offer to be extended so as to expire not earlier than 5:00 p.m. New York time on January 5, 1996. In addition: (i) Buyer may extend the Offer, at any time up to the Outside Termination Date for one or more periods of not more than ten business days, if any condition of the Offer has not been satisfied; (ii) Buyer shall have the right to extend the Offer at any time, for any reason, for a period not to exceed ten business days provided such extension shall not (y) extend beyond the Outside Termination Date or (z) be permitted if all conditions to the Offer that Offeror becomes obligated to accept have been satisfied and at least 90% of the outstanding Shares, on a fully diluted basis, have been validly tendered and not withdrawn; and (iii) Buyer may extend the Offer for paymentincremental periods of not more than ten business days if at the time of any such extension an Acquisition Proposal (as such term is defined in Section 6.05) exists. In addition, the Offer Price may be increased and pay for, pursuant the Offer may be extended to the Offer as soon as practicable after expiration extent required by law in connection with such increase, in each case without the consent of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange ActCompany. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to takeBuyer shall pay, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn.
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Samples: Agreement and Plan of Merger (Pratt & Lambert United Inc)
The Offer. (a) Provided that nothing shall have occurred that would --------- result in a failure to satisfy any of the conditions set forth in paragraphs (a) through (i) of Annex I A hereto, the Purchaser shall, and Parent shall or shall cause Sub the Purchaser to, as promptly as practicable following after the date hereof, but in no event later than five business days after following the initial public announcement of the Offerterms of this Agreement, commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, the "Offer") to purchase for cash all of the issued and ----- outstanding shares of common stock, par value $0.005 per share, Company Common Stock (the shares of the Company (Common Stock hereinafter referred to as the "Shares" or "Common Stock"), ) at a price of not less than $10.50 5.37 per Share, ------ Share net to the seller in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as the "Offeror." The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered (and not withdrawn) in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn a Offer, that number of Shares which, together with any Shares then owned by Parent or Sub, which represents at least ninety (90%) percent a majority of the outstanding Shares outstanding on a fully-diluted basis (the "Minimum Condition"), (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) to the other conditions set forth in Annex I A hereto. Offeror ------------------ Notwithstanding the foregoing, the Purchaser expressly reserves the right in its sole discretion to waive any such condition (including the Minimum Condition, provided that no such waiver of the Minimum Condition shall decrease the Minimum Condition conditions to less than sixty-six and two-thirds (66 2/3%) percent), to increase the price per Share payable in the Offer, to extend the Offer and to make any other changes change in the terms and or conditions of the Offer; provided, howeverprovided that without the prior written consent of the -------- Company, that unless -------- ------- previously approved by the Company Purchaser shall not waive the Minimum Condition and shall not make any change in writing, Offeror will not (i) decrease the Offer which changes the form of consideration to be paid or decreases the price per Share payable in Share, or the Offer, (ii) decrease the maximum number of Shares to be purchased sought in the Offer, (iii) impose Offer or which imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change A. The Purchaser shall have the conditions right to extend the Offer (for not more than an aggregate of five business days (as defined in any material respect adverse Rule 14d-1 under the Exchange Act)) from time to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, time without the consent of the Company, (i) extend . In addition to the Offer beyond any scheduled expiration date (rights set forth in the initial scheduled expiration date being 20 business days following commencement of the Offer) for a period not to extend beyond July 31, 1998two preceding sentences, if at on any scheduled expiration date of the Offer, any of the Offer all conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) Offer shall not be have been satisfied or waived, until such time as such conditions are satisfied or waived and (ii) the Purchaser shall extend the Offer for any period required by any rule, regulation, interpretation from time to time until such conditions have been satisfied or position waived; provided that the Purchaser shall have -------- no obligation to extend the Offer beyond the date 60 days after commencement of the Securities Offer unless the waiting period applicable to the transactions contemplated by this Agreement under the HSR Act has not terminated or expired in which case not past the date set forth in Section 8.1(b) hereto. If on any scheduled expiration date of the Offer all conditions to the Offer (including the Minimum Condition) shall have been satisfied but the number of Shares tendered (and Exchange Commission not withdrawn) pursuant to the Offer represent less than 90% of the outstanding Shares, on a fully-diluted basis (including for this purpose only options and warrants that are in-the-money and excluding for this purpose any right to acquire Shares that may not be exercised within 60 days from the "SEC"applicable date), the Purchaser shall also have the right to extend the Offer from time to time without the consent of the Company (for not more than an aggregate of 10 business days) or in order to permit the staff thereof applicable Purchaser to solicit the tender of additional Shares pursuant to the Offer. The limitations regarding Subject to the foregoing and to the terms and conditions of the Offer, the Purchaser agrees to pay, as set forth in promptly as reasonably practicable after the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions expiration of the Offer and this AgreementOffer, Offeror shall accept for payment , and pay for, all Shares validly properly tendered and not withdrawn pursuant to the Offer that Offeror becomes the Purchaser is obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offerpurchase.
Appears in 1 contract
The Offer. (a) Provided that nothing shall have occurred that that, had the Offer been commenced, would result in a failure to satisfy any of the conditions set forth in paragraphs Annex I hereto (a) through other than the conditions described in Paragraphs (i), (ii) and (iii) of Annex I hereto, Parent shall or shall cause Sub toI), as promptly as practicable following after the date hereof, but in no event later than five seven (7) business days after following the initial public announcement of the Offer, commence (within the meaning terms of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer (as amended from time to time in accordance with this Agreement, Merger Sub shall, and Purchaser shall cause Merger Sub to, commence the "Offer") to purchase all of the issued and outstanding shares of common stock, par value $0.005 per share, of the Company (the "Shares" or "Common Stock"), Offer at a price of not less than $10.50 18.25 per Shareshare of Company Common Stock, net to the seller stockholders of the Company in cash. For purposes of this Article I, the party which makes the Offer, whether Parent or Sub, shall be referred to as cash (the "Offeror." Offer Price"). The obligation of Offeror to accept for payment and to pay for any Shares tendered in the Offer shall be subject only to (i) the condition that there shall be validly tendered in accordance with the terms of the Offer Offer, prior to the expiration date of the Offer and not withdrawn withdrawn, a number of Shares whichshares of Company Common Stock that, together with any Shares the shares of Company Common Stock then owned by Parent or Purchaser and/or Merger Sub, represents at least ninety (90%) percent a majority of the Shares shares of Company Common Stock outstanding on a fully-diluted basis (the "Minimum Condition"), and (ii) the receipt of cash proceeds of the Financing (as defined in Section 4.2(d) of this Agreement) in an amount sufficient to consummate the transactions contemplated hereby pursuant to the terms of the Commitments (as defined in said Section 4.2(d)) or such other terms as Parent and the Company shall agree or as are not materially more onerous than as set forth in the Commitments (the "Financing Condition") and (iii) the other conditions set forth in Annex I heretohereto (collectively with the Minimum Condition, the "Offer Conditions"). Offeror Merger Sub expressly reserves the right in its sole discretion to waive any such condition (including of the Minimum ConditionOffer Conditions and to make any change in the terms or Offer Conditions, provided that that, no such change or waiver may be made that, without the prior written consent of the Minimum Condition shall decrease Company, waives or changes the Minimum Condition to less than sixty-six and two-thirds Offer Conditions described in Paragraphs (66 2/3%) percenti), (ii), (iv)(a) or (h) of Annex I hereto, changes the form of consideration to increase the price per Share payable be paid in the Offer, to extend decreases the Offer and to make any other changes in Price or the terms and conditions number of the Offer; provided, however, that unless -------- ------- previously approved by the shares of Company in writing, Offeror will not (i) decrease the price per Share payable Common Stock sought in the Offer, (ii) decrease the maximum number of Shares to be purchased in the Offer, (iii) impose imposes conditions to the Offer in addition to those set forth in Annex I hereto, (iv) change the conditions to the Offer in any material respect hereto or is otherwise materially adverse to the Company, (v) except as provided in the next sentence, extend the Offer, (vi) change the form of consideration payable in the Offer or (vii) amend any other term of the Offer in a manner adverse to the holders of the Shares. Notwithstanding the foregoing, Offeror may, without the consent stockholders of the Company, (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 extend beyond July 31, 1998, if at any scheduled expiration date of the Offer, any of the conditions to Offeror's obligation to accept for payment, and pay for, Shares (including, with respect to the Financing Condition, the consummation of the sale of the Senior Notes (as defined in Section 4.2(d)) shall not be satisfied or waived, until such time as such conditions are satisfied or waived and (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. The limitations regarding the terms and conditions of the Offer, as set forth in the second preceding and the immediately preceding sentences, shall not be applicable in the event this Agreement is terminated pursuant to Section 8.1(d) of this Agreement. Subject to the terms and conditions of the Offer and this Agreement, Offeror shall accept for payment , and pay for, all Shares validly tendered and not withdrawn pursuant to the Offer that Offeror becomes obligated to accept for payment, and pay for, pursuant to the Offer as soon as practicable after expiration of the Offer, subject to compliance with Rule 14e-1(c) under the Exchange Act. Subject to the terms and conditions of the Offer, Parent and Sub will each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations to consummate the Offer.
Appears in 1 contract
